February 5 Audio file of Clinton Fernandes’ talk in Melbourne. It complements his book “Island off the Coast of Asia”.
Clinton Fernandes Bernard Collaery & Witness K 5-2-2019.mp3
February 5 Audio file of Clinton Fernandes’ talk in Melbourne. It complements his book “Island off the Coast of Asia”.
Clinton Fernandes Bernard Collaery & Witness K 5-2-2019.mp3
Leach: An Eventful Year Ends in Tension
Inside Story, 14 December 2018
The country’s political scene is being shaped by co-habitation between an AMP government and a Fretilin president
Beginning with the early election in May that brought the Xanana Gusmão–led AMP coalition back to power, this has been an eventful political year in Timor-Leste. The May election followed a nine-month Fretilin-led minority government that proved unable to steer its program through parliament. Having taken power, the new government found itself mired in a stand-off over ministerial appointments with the president, Fretilin’s Francisco Guterres, in what became the opening round of uneasy cohabitation under Timor-Leste’s semi-presidential system.
The year also saw the historic agreement between Timor-Leste and Australia that fixed maritime boundaries at the median line in the Timor Sea, ending a long-running dispute between the two nations. That deal opened the way for a major resetting of the troubled bilateral relationship, and ministerial visits have since resumed. The year was capped off by the president’s veto of preliminary aspects of an ambitious plan for the East Timorese government to take a majority share in the Greater Sunrise Joint Venture.
Since its return to power, the AMP government has primarily focused on advancing Gusmão’s aim of bringing oil and gas from the Greater Sunrise field to Timor for downstream processing. The government believes this will maximise the economic and social returns from the country’s increased share of Greater Sunrise revenues, which has risen from 50 per cent to at least 70 per cent since the deal was struck with Australia. Planned major infrastructure projects along the south coast, collectively known as Tasi Mane, are still at an early stage.
The focus on resource processing is reflected in the government’s US$1.8 billion budget for 2019, currently before parliament. More than a third of the budget is devoted to Tasi Mane infrastructure works and joint venture acquisition costs. The plan is controversial in sectors of East Timorese civil society worried that the costs will outweigh the benefits. But the government predicts greatly increased returns, and appears to be having some success in stirring nationalist support for its vision of increased resource sovereignty.
Led by prime minister Taur Matan Ruak of the Popular Liberation Party, or PLP — though in practice dominated by Gusmão as leader of the larger CNRT — the government has faced ongoing challenges. President Guterres refused to install nine of its ministerial nominees, citing judicial inquiries into misconduct or “poor moral standing,” producing a stand-off, primarily involving CNRT members, now effectively in its sixth month. Some former ministers have instead been working as senior advisers, and parliament has responded to the president’s action by repeatedly denying his travel requests.
The stand-off has given the government a curiously dual character. On the one hand, its normal business is being carried on by an incomplete ministry over-representative of the minor alliance parties, PLP and KHUNTO. On the other, a powerful group of CNRT figures without formal portfolios, led by Gusmão, has been primarily concerned with advancing the Greater Sunrise/Tasi Mane project.
The government had some important wins. Its budget for the remainder of 2018 passed through parliament, ending the recurrent “twelfths” system, which had contributed to a flattening of the economy. But it has also faced renewed student protests over MPs’ new Prado cars — such vehicles being a common focus of grassroots concern over waste and inequality. Associated protests by the University Students’ Movement have been met with heavy-handed policing from a force that was already under a cloud after an off-duty policeman killed three and wounded others at a party. The incident highlighted the lax enforcement of rules prohibiting off-duty gun possession, which must be addressed.
The 2019 budget is being debated in parliament this week. Key items include the proposed purchase of Conoco Phillips’s stake in Greater Sunrise Joint Venture for US$350 million, to be followed by the buyout of Shell Australia’s share for US$300 million in the 2020 budget. If these purchases are ultimately approved, Timor-Leste would have a 56 per cent stake in the joint venture.
As a preliminary step, the government made changes to the petroleum activities law to lift the legislated 20 per cent limit on state ownership. A presidential veto has challenged that move this week, though Guterres’s justification focused primarily on the financial sustainability of the nation’s petroleum fund. Some local NGOs believe that the 20 per cent limit was unenforceable anyway, and that the recent changes to the law were instead aimed at reducing the capacity of Timor-Leste’s Audit Court to review large contracts — an accusation the government denies. The Audit Court has certainly proved the most active and able of the East Timorese watchdogs, previously overturning a contested US$720 million contract for constructing the supply base in Suai.
It’s not clear whether overturning the latest presidential veto would require a simple majority in parliament, or a two-thirds supermajority. Fretilin, which holds just over a third of parliamentary seats, can certainly rule out the latter. Clearly, the 2019 budget, with its ConocoPhillips joint venture payment, could also fall foul of a presidential veto, and here the need for a supermajority is clear. There has been talk of using the petroleum fund as an alternative source of funds, but the mechanisms to be used are not clear. This presidential block on a major government agenda therefore leaves a central tension brewing in the political system.
More positively for the government, the politics of this issue appear to be travelling broadly in its favour at present, with all parties offering in-principle backing for a pipeline to Timor-Leste. Fretilin maintains that it supports the downstream processing vision but opposes alterations to petroleum fund governance and wants the cost–benefit analysis made public. Some NGOs strongly question the wisdom of the megaproject, and fear the sovereign wealth fund of US$17 billion could be depleted even sooner than projected. The balance, they point out, dropped a record US$680 million in October.
A presentation by Xanana Gusmão this week in Dili outlined the vision in broad strokes. He revealed government modelling that puts costs in the order of US$10.5 billion, 80 per cent of which would be sourced from joint venture partners, loans or other financing. Claimed returns from the project under the modelling are in the order of US$28 billion to US$54 billion above the return from a simple revenue split, depending on capital and operational expenditures, and oil and gas prices. East Timorese NGOs counter that the government’s investment could instead cost up to US$14 billion, and that price assumptions and external financing are uncertain. They also worry that the project will rapidly deplete the petroleum fund, the interest from which is intended to subsidise annual budgets into the future.
Where the majority funds for the massive Tasi Mane project will come from is now an even more critical question. As NGOs point out, becoming a joint venture partner exposes Timor-Leste to an equivalent share of the massive capital development costs. The government counters that the joint venture partnership will also bring new income streams beyond the revenue split negotiated between the countries, including extra tax revenue and returns on capital expenditure. These form the basis of the government’s revenue projections.
While Fretilin leader Mari Alkatiri and President Guterres were notable absences from the presentation, the vision drew some support from José Ramos-Horta (though he too has expressed concern over amending the petroleum activities law). Ramos-Horta also tactfully urged dialogue between the government, president and opposition. While the president appeared to get the best of the furore over ministerial appointments, the government is having more success in framing the oil and gas issue as one of national pride and resource sovereignty, which complicates the terrain for critics of the Tasi Mane megaproject.
While a veto of the 2019 budget remains a strong possibility, the political focus of any veto may be on education and health spending, and transparency rather than directly tackling the payments to acquire a joint venture share. Here the government has some vulnerability, as the proposed 2019 budget sees only a modest increase of $US11 million in education spending, with health and agriculture spending remaining essentially static, despite their being declared budget priorities by the government. This suggests that the PLP has had relatively little success pushing its policy agenda within the coalition.
More positively for the government, the return to the revised school curriculum, which prioritises Tetun literacy in the early school years and introduces Portuguese language later, has been broadly welcomed. This approach accords more strongly with the educational evidence, which strongly suggests this staging is more likely to produce improved fluency in both official languages.
The wider politics of the government’s resource sovereignty vision are significant. It rejects the presumption that downstream processing is the natural preserve of more developed countries — a powerful argument capable of recruiting strong nationalist support. Gusmão already has a strong track record in promoting international organisations like the g7-Plus, which call for developing countries to lead their own development strategies and recruit donor support on that basis.
Beyond its bold forecast of greatly increased returns, the government’s vision of resource sovereignty is also a potent nationalist motif to mobilise political support, including for future election campaigns. Likewise, it may see longer-term political benefits in providing jobs and training, even if projected returns from resources projects are lower than anticipated. In contrast to the civil society focus on bottom line costs to the economy and petroleum fund, the calculus may not be a simple economic one for the government.
For Timor-Leste’s neighbours, the larger question concerns the likely partners to fund the majority of the project. The prospect of China’s involvement obviously raises great concerns in Canberra, and while there is no hard evidence of Chinese interest, the question of how the government would finance the remaining 80 per cent remains unclear. Notably, the contract for a new digital television network went to a Chinese company earlier this week.
As 2018 comes to an end, political tensions are rising again in Dili. The clash between a determined government agenda and presidential veto powers suggests a new election in 2019 cannot be ruled out. For the government, the prospect of winning one more seat and removing Fretilin’s block on a parliamentary supermajority, weakening President Guterres’s veto power, may prove appealing. Though elections are formally in the president’s hands, any protracted institutional stand-off over the budget may leave few other solutions.
Michael Leach is Professor of Politics and International Relations at Swinburne University of Technology.
© 2018 Inside Story and contributors | ISSN 1837-0497 | Website by Liquorice
Last week, negotiators from the Timor-Leste government and the ConocoPhillips international oil company agreed that Timor-Leste will purchase ConocoPhillips’ share in the Joint Venture (consortium or JV) of four oil companies who hold the contract to develop the Greater Sunrise oil and gas field. By paying $350 million, Timor-Leste will become the owner of 30% of this project, together with Woodside (33%), Shell (27%) and Osaka Gas (10%). If the sale goes through, TimorGAP, as Timor-Leste’s national oil company, will participate in making decisions about the project, be responsible to contribute 30% of the investment, and be entitled to 30% of the profit.
This article will address some confusion and misinformation that is circulating in Timor-Leste and international media about the purchase and the Sunrise project. La’o Hamutuk has followed this issue for many years (we published the book Sunrise LNG in Timor-Leste: Dreams, Realities and Challenges in 2008), and we continue to encourage fact-based, objective decisions to serve the best interests of Timor-Leste’s people. We hope that this article will help you understand legal, economic, social and environmental aspects of the project, which has the potential to bring significant benefits or huge losses to our people. Decisions should not be primarily motivated by “winning” a pipeline or overcoming the opinions of countries and companies, but by what will give the most benefit to Timor-Leste’s people over the long term.
The Greater Sunrise undersea gas and oil field was discovered in 1974, but it has not yet been developed because of the Indonesian occupation, the (recently resolved) maritime boundary dispute with Australia, and disagreement about where the gas should be processed. Some analysts estimate that its gas and oil will sell for about $50 billion. After paying for capital investment, operating costs and company profit, this could generate $8-20 billion in tax and royalty revenue to Timor-Leste. If Timor-Leste becomes a part-owner, we will share in the profits, as well as in the responsibility for investment.
For many years, Sunrise has been stalled because Timor-Leste’s government has insisted that its natural gas be piped to Timor-Leste, where it will be cooled until it becomes a liquid (Liquefied Natural Gas – LNG) that can be loaded onto tanker ships and sold to overseas customers.
However, the four oil companies in the Joint Venture believe that other ways of making LNG – either through a pipeline to Australia (Darwin LNG or DLNG) or on a floating platform above the field (FLNG) – will be more profitable and less risky. Timor-Leste’s government believes that spinoff jobs, contracts and local economic development on the Tasi Mane coast will more than compensate for the higher costs and risks of bringing the gas here, but this view is not shared by Australia, the Sunrise Joint Venture, or the UN Conciliation Commission that facilitated the Boundary Treaty. La’o Hamutuk and experts we have consulted are not convinced that the benefits to Timor-Leste are greater than the costs, and we have repeatedly asked the managers of the project for the assumptions and data that make them so optimistic.
Last March, Timor-Leste and Australia signed an historic Treaty to establish their maritime boundary, and it is pending ratification in both countries. La’o Hamutuk celebrates this achievement as a significant advance for Timor-Leste’s national sovereignty. Although the negotiators had hoped to resolve the Sunrise question before the Treaty was signed, they were unable to. Because Sunrise straddles the boundary established by the new treaty, Timor-Leste will receive 70% of the government revenues for extracting Sunrise oil and gas if the gas is processed in Timor-Leste, and 80% if it is processed in Australia.
Buying out ConocoPhillips
Timor-Leste’s purchase of ConocoPhillips’ 30% share of Greater Sunrise is one step in a long process which may eventually bring a gas pipeline from the Sunrise field to Beacu on the south coast. Many Timorese citizens are proud of our political leaders for persuading or paying Australia and the oil companies to accept this position. However, this issue has financial, economic, environmental and social consequences which could affect people’s lives for many generations, and will be longer-lasting and more consequential than temporary patriotic emotion. It is not yet clear that the Sunrise pipeline will be good for the people of Timor-Leste.
The nation needs and deserves a detailed, objective analysis, with complete public information, about the costs, benefits, risks, and impacts of the entire Greater Sunrise and Tasi Mane projects before billions of dollars of public funds are disbursed to oil companies, contractors, brokers and other individuals and companies who don’t have any long-term commitment to the nation or obligation to serve the public interest.
La’o Hamutuk has serious doubts that such an analysis will prove that the benefits of bringing the Sunrise pipeline to Timor-Leste are enough to justify its huge costs, risks and social impacts. But even if it does, the recent agreement to purchase ConocoPhillips’ 30% share is insufficient to ensure that the pipeline will come here.
What else has to happen to bring the pipeline to Timor-Leste?
1. Under the Sunrise Joint Venture rules, each other partner – Woodside, Shell, or Osaka Gas – has the right to “pre-empt” another buyer. In other words, if ConocoPhillips intends to sell its 30% share, one of these companies could purchase it to prevent it from going to someone else. Media reports indicate that Woodside may exercise this power, which would prevent Timor-Leste from buying the share from ConocoPhillips.
2. Australian and Timor-Leste government regulators will have to approve the purchase. The sales contract and Joint Venture agreement must also be approved by the Council of Ministers and reviewed by the Audit Court.
3. Timor-Leste will have to pay $350 million to ConocoPhillips early next year, sort of a down payment on much larger financial obligations in the future (see #5 below). The $350 million – more than twice as much as Timor-Leste spends each year to educate our children – will be taken out of the Petroleum Fund, probably as part of the 2019 State Budget which the Government will propose to Parliament in November. We hope that Parliament’s debate on the Budget will fully explore this issue, including financial and other obligations that Timor-Leste assumes by joining the Joint Venture.
4. Even after Timor-Leste owns a 30% share of Greater Sunrise, it will need to persuade Shell and Woodside to approve a pipeline to Timor-Leste, which may reduce the profitability of the project. Most Joint Ventures require unanimous approval for a major decision like this one. ConocoPhillips wanted to process the gas in Darwin, perhaps because it is the principal owner of the soon-to-be-idle LNG plant there that has been processing gas from Bayu-Undan. They persuaded Shell and Woodside to support their position. Before that, the Joint Venture had preferred Floating LNG; Timor LNG was always the third choice for all the partners.
Without ConocoPhillips, the Sunrise JV will have less financial resources and technical and administrative expertise, and other partners may ask for compensation to accept the increased cost and technical and security risks of a deep-water pipeline to a new LNG plant in Beacu, as well as the additional infrastructure and regulatory support that it will require.
Potential buyers for the LNG will also have to approve the development option and will want assurance that the price, continuity of supply, and security of operation meet their needs.
5. Timor-Leste will need to pay at least 30% of the capital cost to develop the Sunrise field, which will be several billion dollars. This investment is not only for the pipeline and LNG plant, but for drilling exploratory and production wells, building the infrastructure to process oil and gas at the field (probably including a Floating Production Storage and Offloading (FPSO) vessel to store and sell oil from Sunrise), operational infrastructure, and other costs. If this money is borrowed, Timor-Leste will have to pay it back with interest. Although everyone hopes that this investment can be recovered a few years after the field starts production in 6-12 years, the money will need to be paid up front, and recovery is not certain.
6. After the partners and governments agree and the capital investment financing has been secured, the Joint Venture has to design and build the project, subject to regulatory and environmental approval and best practice.
The oil and gas industry has caused pollution, spills, accidents, fires and explosions all over the world, and we need to take appropriate measures to protect our beloved country. Nothing anywhere near this scale has ever been built in Timor-Leste, and virtually nobody here has ever experienced the potential environmental disasters it comes with.
Our regulatory agencies and environmental authorities do not yet have the knowledge, understanding, or perspective to manage a project like this, and they often find it difficult to stand up to political pressure. Although this scientific and administrative capacity could be developed over time – with support from people who have already had major responsibilities on similar projects – the learning curve is long and the consequences of mistakes are huge. “Learning by doing” is not acceptable when billions of dollars and thousands of lives are at risk.
The oil industry is secretive by nature, and projects of this magnitude all over the globe, involving payments of hundreds of millions of dollars to dozens of entities, are often riddled with corruption. After Timor-Leste becomes an owner of Sunrise, our country and our money will be a magnet for thieves and scammers who want a piece of the action, and we may end up paying much more than we should or expect to. With a project of this size and complexity, Timor-Leste needs to implement transparency, oversight, accountability, and checks and balances all along the way. We do not yet have the necessary safeguards in place, and we need to develop them immediately.
In summary, everyone in Timor-Leste needs to be certain that this long journey is one which will lead to a good place. Timor-Leste has already spent about $250 million on the Tasi Mane project, mostly for Suai airport and the Suai-Fatukai highway. We are about to spend $350 million more to buy into Greater Sunrise, to be followed by several billion to prepare to extract its oil and gas. We may spend another $5-$10 billion to build the rest of the Tasi Mane project.
In other words, the country will spend most of our $17 billion Petroleum Fund – which finances education, health care, roads, water, electricity, veterans, PNTL, F-FDTL and many other things – to pursue the gas from Greater Sunrise. It is not too late to seriously consider its costs and benefits, and to see if the petroleum path is the most promising, practical and productive way to use the nation’s finite economic resources. Should we invest our time, money, political capital and administrative skills in the Sunrise and Tasi Mane projects – or should we take the more certain, less dangerous path of diversifying our economy, building on our human and agricultural resources?
If we make the wrong decision now, it will be even harder to change course in the future, and we may continue to throw good money after bad.
[The online version has titles and links to several articles and press releases.]
From https://laohamutuk.blogspot.com/2018/10/buying-part-of-greater-sunrise-from.html , which has graphics and links, including to many media articles.
Rua D. Alberto Ricardo, Bebora, Dili, Timor-Leste
Telephone: +670-3321040 or +670-7723-4330
http://www.laohamutuk.org blog: http://laohamutuk.blogspot.com/
If the conduct of the Commonwealth government in the scandal surrounding the bugging of Timor-Leste’s embassy is anything to go by, Australia’s democracy might not be as robust as we think, writes Madeleine Miller.
At a conference in Sydney on the 19thof August, silk and President of the International Law Association, Christopher Ward invited the Attorney General, Christian Porter to speak to a room of over 100 distinguished international lawyers from across the world. The subject was the rule of law.
As the leadership spill ensued, Porter sent shadow minister for finance, David Coleman, to read his speech. Through Coleman, the Attorney General spoke of the gravity of his role as carrying “a great privilege and fundamental responsibility” and the rule of law as “crucial in promoting stability, ensuring everyone is equal before the law… and a pillar upon which our engagement abroad rests.”
According to Porter, “Australia’s firm commitment to the rule of law is no better illustrated than through the historic maritime boundary treaty that we signed in March this year.”
In a somewhat ironic twist, ILA President, Christopher Ward emerged at the ACT Magistrates Court last Wednesday as Bernard Collaery’s legal representation. Collaery is the lawyer for Witness K, a former Australian Security Intelligence Service (ASIS) official discharged after questioning the authority of ASIS to send spies posing as foreign aid workers to plant listening devices in Timor Leste’s cabinet room during oil negotiations with Australia in 2004.
The person responsible for authorising the charges against Collaery and Witness K was the Attorney General, Christian Porter.
While the media has been fixated on the spitfire between Peter Dutton, Roman Quaedvlieg and au pairs, this case which speaks volumes about ministerial integrity and anti-corruption is sailing under the radar for most Australians. Labor’s dirty hands in this decade long shame, is pushing this case to the deathly silence of the sea floor. This trial should be at the surface, generating waves and rocking Australia out of complacency.
This case is not simply about whistleblower protection (Collaery argues that it is not about whistleblowers at all) – but cuts much deeper to the integrity of our democratic system.
It exposes the significant deficiencies in the protection of the rule of law in Australia which cannot be whitewashed by glossy tales of treaty signing with Timor-Leste, after decades of playing dirty.
It is fitting that this case appeared before a Magistrate around the anniversary of 9/11. Since 9/11, Australia has introduced over 60 pieces of federal counter terrorism legislation. This deluge of national security legislation has eroded significant aspects of the rule of law, and Bernard Collaery and Witness K have become examples of what can be caught in the trawler net of counter terrorism legislation.
The rule of law is the foundation of our democratic system, but you won’t find it mentioned in the constitution. It is an inference. In its most basic form, it means that we are subject to laws created by our elected representatives, but so are our elected representatives; everyone is equal before the law.
However, the steadfast understanding of the rule of law is that equality before the law depends upon checks and balances on the use of power, freedom of speech, transparency and access to confidential legal advice.
What the prosecution of Collaery and Witness K illustrates is that our intelligence agencies are not equally accountable for breaking the law, and that political revenge can be the catalyst for bringing a proceeding before the court.
While charges have been laid against Collaery and his client, the Australian Federal Police, to our knowledge, have not investigated the alleged unlawful activity of ASIS in the bugging of Timor Leste’s cabinet, despite a request from Independent MP Andrew Wilkie, Centre Alliance MP Rex Patrick, and Greens Senator Nick McKim.
Surely it is a question of significant public interest whether or not espionage for oil companies in a commercial negotiation on a poor foreign neighbor is a ‘proper purpose’ for our intelligence agencies under our domestic law?
The Attorney-General is a gatekeeper of the rule of law, tasked with promoting, preserving and protecting it. The Attorney General has the power to initiate and end criminal proceedings. However, the role of Attorney General is inherently frustrated by the fact that they are also an elected politician, who is answerable to his or her party.
Whether prosecuting is in the ‘public interest’ is a juggling act of perceived independence and keeping your party afloat. Only with significant public pressure can the integrity of this role be upheld.
With Labor keeping its mouth shut about this case (except of MP Julian Hill who denounced the charges on Tuesday), the Attorney General’s decision to prosecute Collaery and Witness K in the ‘public interest’ has been left largely unchallenged. Porter has made no public statement to clarify how he concluded that the prosecution is in the public interest.
The Inspector General of Intelligence Services is an office tasked with ensuring that our intelligence agencies “act legally and with propriety, comply with ministerial guidelines and directives and respect human rights.”
However, the power of this watchdog is undermined by the requirement that the IGIS report to the minister. The function of the IGIS presumes that the Minister was not involved in the wrongdoing. There is also a cognisable issue with independence as it is situated within the Department of Prime Minister and Cabinet.
Collaery has claimed that his client went to the IGIS to report the unlawful bugging of Timor Leste’s cabinet and was given approval to seek legal advice. It is alleged his employment was then terminated. The IGIS has subsequently denied being approached by Witness K.
Questions remain to be answered who knew about the alleged bugged operation and who delivered the direction.
The Public Interest Disclosure Act, the federal whistleblower protection law, excises intelligence officials from the ambit of its protection, and does not protect those who blow the whistle on wrongdoing by politicians.
Two men who were extensively involved in the Timor Sea issue at the time Timor-Leste’s cabinet was bugged – Foreign Minister Alexander Downer, and the Secretary of the Department of Foreign Affairs, Ashton Calvert – have both gone on to take up positions at Woodside, the primary beneficiary of the oil in the Timor Sea.
Former Labor Ministers for Energy and Resources, Gary Gray and Martin Ferguson, have also both gone on to roles associated with Woodside.
The integrity of Ministerial decisions is further muddied by the fact that Woodside has donated over $1.4 million to the major parties over the last decade.
In the absence of a federal integrity commission, the integrity of ministerial decision-making will continue to be one of doubt, and little consequence.
Unlike the United States, the Australian Senate and the Parliamentary Joint Committee on Intelligence and Security has very little oversight over the work of our intelligence agencies beyond administration and finance.
Australia is not ‘bound’ by international law. When Australia signs an international treaty, it does not automatically become law in Australia. This is unlike many countries throughout the world, including the United States where it automatically becomes domestic law without the need for legislation. Although international law may inform Australian courts’ interpretation in some circumstances where there is ambiguity, that is the extent of it.
A core tenet of international law on treaties (in which Australia is a signatory) is negotiation in good faith. Spying in the circumstances Australia did was an abject breach.
Anticipating independence was imminent, two months before the vote Australia withdrew from the jurisdiction of the International Court of Justice and rejected the jurisdiction of the International Tribunal of the Law of Sea.
Unlike most democracies, Australia does not have a human rights charter, and limited protection of human rights in the constitution. Only two Australian states have human rights bills. No piece of Australian law lays out the rights attaching to Australian citizenship. Collaery and Witness K’s case will be a real test of the fallibility of Australian human rights protections.
Both Collaery and Witness K face charges under the Intelligence Services Act, for communicating information about ASIS – Witness K as a former ASIS official, and Collaery as someone who has a contract or agreement with ASIS.
However, Collaery has been at pains to point out to the media, Witness K did not ‘blow the whistle.’ The only communication he engaged in was with his lawyer, and he was intending to give evidence at the private proceedings of the Permanent Court of Arbitration, and not to the public.
As Witness K’s lawyer, Collaery is arguing he was and is not under any contractual agreement with ASIS. As a lawyer he owes a duty foremost to the court and to serve the best interests of his client.
Intending to push on with the publishing of his book about Australia and Timor Leste in January next year, Collaery is turning up the dial of his fight against the dilution of freedom of speech by counter terrorism laws.
The confidentiality of communication between a lawyer and his client however, is a very well-established principle of the rule of law and is seen as essential to the justice system. Yet, in the name of “national security”, ASIO bugged Collaery’s office and Witness K’s home and conducted raids in 2013, signed off by the Attorney General and not the court.
Collaery argues this would never have been signed off by judicial officer, for the legal profession is underpinned by client legal privilege (confidential communication between lawyer and client). Intercepting this communication is considered a miscarriage of justice and the jeopardization of a right to a fair trial.
The International Permanent Court of Arbitration agreed and ordered the Australian government to return all of the seized material to Collaery.
“National security” was the focus of the directions hearing, with the prosecution determined for the case to be heard behind closed doors. The right to a trial to be heard in public, is another well-established principle of the law that counter terrorism legislation may have again usurped.
At his last appearance before the media on 12 July, Collaery pleaded to the media that they are the soul of justice.
How the court will preside this case is of huge significance to all Australians. It may just expose that our foundations as a free and democratic society are not as fortified as we think.
Collaery and Witness K’s case will next be heard on 29 October at 9am at the ACT Magistrates Court.
Activists compare treatment of Australian spy and lawyer Bernard Collaery to acts of Suharto-led Indonesia breach section 39 of the Intelligence Services Act.
Timor-Leste activists have condemned the Australian government over the prosecution of Witness K and lawyer Bernard Collaery for their roles in revealing the bugging of the Timor-Leste cabinet during negotiations on an oil and gas treaty.
The activists from the Movement Against the Occupation of the Timor Sea (MKOTT) have joined mounting criticism of the prosecution, comparing the act to the targeting they and their family experienced under the rule of the Suharto-led Indonesian government.
“Ironically, these Timorese were charged as terrorists by the Indonesian government and today Mr Bernard Collaery and Witness K are charged with the anti-terror law by the Australian attorney general, their very own government,” MKOTT said on Friday.
“MKOTT is shocked that, in this day and age, the Australian government is doing what it thinks only the dictator Suharto was capable of doing during his reign.”
The Australian intelligence officer known as Witness K and his solicitor, Collaery, are facing charges of conspiring to breach section 39 of the Intelligence Services Act, following the revelations in 2012 that Australian spies had bugged the room of Timorese negotiators during sensitive talks in 2004 about an oil and gas treaty between the two countries.
A summons alleges Witness K unlawfully communicated intelligence secrets to Collaery, who then allegedly communicated them to a number of ABC journalists.
The News Corp journalist who first broke the bugging story, Leo Shanahan, is not named in the summons.
The first directions hearing is scheduled for Wednesday in Canberra.
Timor-Leste took Australia to the permanent court of arbitration at The Hague, with Witness K prepared to be a key witness, however he was prevented from leaving Australia when his passport was seized in 2012.
In 2013 Collaery’s office was raided by Asio officers and documents seized in what Collaery alleged was an attempt to “muzzle” him. The then attorney general, George Brandis, said the Asio search warrants were issued “to protect Australia?s national security”.
MKOTT condemned the charges as “politically motivated” and an attack by the Australian government on democracy and freedom of expression.
“This act on the part of the Australian government also shows that the government will use anything to pursue Australia?s commercial interests in relations with its neighbours, even if it violates international law to deprive one of its poorest neighbour, and will crash anyone or anything stands on its way.”
Australia’s fractious negotiations with Timor-Leste over the lucrative oil and gas reserves in the seas between the two countries has stretched for decades, intertwined with the Indonesian occupation of the tiny nation and marred by hostilities and accusations.
The case at The Hague was subsequently dropped as an act of good faith and the two countries have since signed a treaty delimiting a maritime border that largely determines the split of oil and gas reserves.
The final division depends on whether the processing occurs in Timor-Leste or Darwin. Timor-Leste has build a processing plant in anticipation but oil and gas companies have flagged a preference for Darwin to avoid having to pipe across the Timor Trench.
The treaty split also prompted criticism of Australia?s decades long claim over resources it has since exhausted but now acknowledges, via the treaty, had belonged to Timor-Leste all along.
The prosecutions of Witness K and Collaery were revealed under parliamentary privilege by the Tasmanian MP Andrew Wilkie, and the Australian attorney general, Christian Porter, subsequently confirmed he had approved them, but refused to elaborate on why.
When asked at the time why the perpetrators of the act were not being prosecuted instead, Porter replied he did not understand the question.
?I am not the prosecutor, nor is the government the prosecutor,? Porter said. ?I am not the judge nor the jury in this matter, and nor is the government.?
Porter’s office declined to comment further and directed Guardian Australia to his previous comments.
Federal Jul 6, 2018
Neither Labor nor News Corp are interested in one of the greatest scandals and cover-ups of recent Australian history, the bugging of Timor-Leste.
Imagine Watergate if the Democrats, and many Republicans, had never been interested in pursuing it. And if the American media not justThe Washington Post, but the many other newspapers that began putting more and more resources into the story despite Nixon’s cover-up hadn’t bothered. Well, there wouldn’t be any Watergate. Nixon would have served out his full two terms and retired as the elder statesman of post-war politics. The break-in at the Democrat headquarters on June 17, 1972, would be a piece of political trivia about one of the worst Democratic campaigns in history, and nothing more.
The Howard government’s bugging of the Timor-Leste cabinet in 2004 is the Watergate of Australian politics, a crime committed by a pack of bullies who believed themselves above the law, not against a rival political organisation that was capable of fighting back through the political system, but a struggling, deeply impoverished neighbour. A crime that has been covered up ever since through a combination of lies, refusals to discuss the issue, harassment and intimidation and, now, a vexatious political prosecution of Witness K and Bernard Collaery. Only, in this version of Watergate, the political opposition is entirely uninterested in either the crime or the cover-up, and refuses to do anything about either. Bob Carr and Mark Dreyfus lied about the issue in 2013, perpetuating the cover-up. You can watch Tanya Plibersek twisting and turning to avoid commenting in 2016. “Don’t you want to know? Do you want to know what the answer to this?” Tony Jones asked Plibersek about it. Apparently not.
Some parts of the media have been better: Fairfax, the ABC and TheGuardian have all carried a number of articles of reportage, comment and analysis of the prosecution of K and Collaery in the last week, particularly concerning a number of figures who have criticised the prosecution. The ABC, of course, prominently covered the issue in 2013 and 2014, and its journalists and producers are named in the prosecution documents as being the people Collaery communicated information to. But one noticeable absentee from coverage of the prosecution is News Corp outlets. News.com.au and the News Corp tabloids have had no coverage of the prosecution at all; The Australian had one article covering the prosecution, and a brief mention in “Strewth”. Otherwise, the issue has received no coverage whatsoever from the Murdoch press.
Which, given it was The Australian‘s yarn, given Leo Shanahan broke the story on May 29, 2013, is rather peculiar. Normally the Oz and its tabloid cousins are eager to remind us that they had the scoop, and that everyone else in the media is just playing catch-up. Why the studied silence over K and Collaery? Oh, that’s right, the government decided to omit News Corp from the prosecution documents. Only ABC staff will have to give evidence, and perhaps have their conversations with Collaery played in court. Not Shanahan. And one News Corp commentator, Niki Savva, actually tried to justify the prosecution on Insiders last week.
Clearly the Turnbull government didn’t want to risk News Corp firing up over the prosecution by including one of its journalists. It wants K and Collaery prosecuted in camera, as quietly as possible, with minimal coverage, to punish them for exposing both the crime and cover-up, and to signal to anyone else who might be in a position to embarrass them that they’re next only now the penalty is a decade in jail, (thank you George Brandis) not the two years Collaery and K face. So it’s keeping News Corp onside, and so far News Corp is complying.
The cover-up continues right before our eyes.
Ties between Timor-Leste and Australia hit turbulence
Timor-Leste’s new government has hit a major hurdle in its plan to improve fraught relations with Australia over the sensitive issue of maritime boundaries in the gas-rich sea between the two countries.
It was only in March that Australia and Timor-Leste, formerly known as East Timor, signed a treaty drawing permanent maritime boundaries.
Ties have been improving since, but now the legacy Australian spying 14 years ago has come to the fore.
The Australian spy agency “whistleblower” known as Witness K and his Canberra-based lawyer, Bernard Collaery, a veteran advisor to Timor-Leste, were on June 28 committed for trial on criminal charges that could see them both jailed.
They are accused of illegally informing the Timor-Leste government that Australia had been spying on them by using Cabinet room listening devices installed on the authority of then foreign minister Alexander Downer.
This was while crucial talks were being conducted on the sharing of maritime oil and gas reserves.
“Witness K was not a whistleblower,” Callaeary said previously. “He went with his complaint to the Inspector-General of Intelligence and Security and received approval, and I received approval to act.”
Collaery said that the prosecution was a “vindictive” attack that aimed at ruining his reputation and career, according to The Australian.
“It’s an attack on myself for acting as a lawyer within my professional rules and it’s a sad moment in the history of the country I love and have served,” he said.
Privately the Timorese government is saying little, but Colleary is extremely close to Timor-Leste leaders such as Prime Minister Taur Matan Ruak and Xanana Gusmao.
The prosecution by Australia could stymie ongoing talks between Timor and Australia on the thorny issue of whether piped gas from the US$50 billion Great Sunrise gas field lands in Timor-Leste or Australia for processing.
Xanana Gusmao, head of the ruling Alliance for Progress and Change (but not prime minister), is continuing to press for a Timor-Leste facility, despite energy companies claiming such a move is uneconomic and could lead to them not exploiting the fields.
People close to the new Timor PM have said he is very keen to have much closer engagement with Australia. No minister in Australia’s ruling conservative government has visited the country since its election in 2013.
Timor-Leste’s Foreign Minister Dionisio Babo told ucanews.com that the relationship with Australia had improved in recent years under Prime Minister Malcolm Turnbull and Foreign Minister Julie Bishop.
This was during renegotiation of an earlier the maritime treaty, which was torn up by a U.N. court forcing Australia into negotiations. Colleary ran the court case in The Hague for Timor-Leste.
Babo remained mute over the trial committal decision of June 28: “I will not comment, it is a matter for the Australian legal system.”
A spokesperson for the Australian government said planning was underway for Julie Bishop to visit Timor-Leste
June 18, 2018
Australia and New Zealand Banking Group Limited Timor-Leste Branch (ANZ) announced that we will focus on our Commercial banking business and as a result, close our Retail banking products and services in Timor-Leste.
By becoming a simpler bank with one clear focus on commercial banking, we can provide better service to our Commercial customers, by investing our effort and resources in the business.
We remain committed to Timor-Leste where we’ve had a presence since 2001 and we will continue to provide international products to service the region’s commercial customers, with a focus on trade and global markets.
Banku ANZ (Australia and New Zealand Banking Group Limited), fó-hatene katak sei tau matan de’it ba servisu bankáriu sira iha área komersiál, tamba ida-ne, ANZ sei hapara servisu kona-ba produtu no servisu retallu nian iha Timor-Leste.
Hodi simplifika ami nia atensaun ba servisu bankáriu iha área komersiál, ami bele fo servisu nebe diak liu ba klienti komersiál sira, liu husi investa ami nia esforsu no rekursu atu atende sira.
Ami hahú hala’o servisu iha Timor-Leste husi 2001 no sei hatutan nafatin servisu iha ne’e maibé sei hare’e liuliu ba produtu internasionál sira ne’ebé hatán liuliu ba nesesidade Kliente komersiál sira-nian iha rejiaun ida ne’e. Ami tulun Kliente sira atu hatan di’ak liu ba negósiu no harii ligasaun di’ak liu ho merkadu mundiál.
What happens to all of ANZ’s Retail customers?
We will close our Retail products and services in Timor-Leste on Friday 28 September 2018.
Retail customers are advised to make arrangements to close their banking accounts with ANZ Timor by 21 September 2018.
I’m a Commercial customer. Where can I carry out my cash and cheque deposits and withdrawals?
Commercial customers can continue to visit us at the ANZ Service Counter for cash and counter services.
The ANZ branch in Timor Plaza will continue to be open Monday to Friday: 9.00am – 4.00pm (except for public holidays). The branch will offer Commercial customers:
Will there be changes to ANZ’s banking fees and charges?
No, there will be not any changes to our Commercial Banking fees and charges as a result of the closure of our Retail products and services.
Why did ANZ close its Retail banking products and services? What will happen to ANZ’s Commercial business?
We have decided to close our Retail products and services on 28 September to concentrate our efforts where we know we can make an even stronger impact on the prosperity of our customers and the community here – and that’s through our Commercial business.
ANZ remains committed to Timor-Leste, where we’ve had a presence since 2001. Since then, we’ve witnessed an evolving landscape that now clearly points to a period of progress, and we strongly believe that Timor-Leste is poised to enjoy economic prosperity over the long term. We want to be a part of Timor-Leste’s growth journey and need to position our business for long term prosperity as well.
ANZ is the largest Commercial bank in Timor with a book of USD50m – almost double our nearest competitor. We provide more than $150m of bank guarantees. ANZ remains committed to its commercial presence in Timor-Leste, consistent with our goal to be the best bank in the world for clients driven by trade and capital flows across Asia Pacific. The closure of our Retail products and services allows us to focus and invest resources in our Commercial business to support this goal, and to make us a simpler, stronger, more connected bank with a clear focus.
In Timor-Leste, A Vote for Certainty
May 14, 2018
After nearly ten months of political uncertainty, Saturday’s parliamentary elections in Timor-Leste delivered a decisive result. The Change for Progress Alliance, or AMP, a coalition of three parties led by Xanana Gusmão, won 49.6 per cent of the national vote, delivering thirty-four out of sixty-five seats and winning a narrow majority in its own right. In Timor’s proportional system, where outright majorities aren’t common, this was a strong vindication of the decision to combine the forces of Gusmão’s CNRT with Taur Matan Ruak’s Popular Liberation Party, or PLP, and the smaller youth-focused party KHUNTO in a formal pre-election coalition.
This was a polarising election. The AMP achieved a swing of 3.1 per cent on their collective 2017 results, though the entry of a new party saw their tally of seats fall by one. Fretilin received 34.2 per cent of the national vote, and twenty-three seats, maintaining its 2017 seat tally. This represented a substantial swing of 4.5 per cent, though it proved insufficient to overcome the formidable AMP coalition, as the swings to both major groupings came at the expense of smaller parties. The result sees Xanana Gusmão back as PM, at least in the initial phase of the new government, ousting the Fretilin–Democratic Party minority government led by Mari Alkatiri. The Democratic Party is also back in parliament with five seats (down from seven in 2017), and a new coalition, the FDD, has three. The AMP government is likely to form a ministry from within its own ranks, though the FDD may well be invited in later.
With many residents back in their home districts to vote, Dili was unusually quiet in the wake of a divisive and heated campaign. Though observers remain alert to the potential for trouble in coming weeks, there seems no immediate prospect of it occurring in the wake of the poll. The campaign and its divisive prelude in 2017 clearly drove the electorate towards the larger players, with 84 per cent voting for the two major blocs and over 97 per cent of the vote going to four parties. The entire electorate seemed to want to ensure their votes would count, and abandoned the parties unlikely to clear the 4 per cent hurdle to win seats. Turnout was a strong 81 per cent, up 5 per cent on last year.
Some results in the districts were significant. Repeating similar patterns since 2007, the AMP won the ten western districts. Of particular interests was the large swing against Fretilin in the district of Oecusse. It was here that Fretilin recorded its only fall in votes in any district. The fact that the party has had sole responsibility for the district’s Special Economic and Social Market Zone project in recent years will no doubt play on the minds of party strategists, and local Fretilin chief Arsenio Bano apologised publicly for the performance to his leader on Saturday night. In Dili and the eastern districts of Viqueque and Baucau, on the other hand, Fretilin performed strongly, gaining large swings.
With an AMP government and a Fretilin president, the next few years will demonstrate what “cohabitation” looks like in Timor-Leste’s semi-presidential system. Given that previous presidents have been independents, this will be a first, and is likely to test the constitutional relationship between president and parliament, and the scope for presidential vetoes of legislation. Some vetoes are reversible by a simple majority in parliament (though vetoes of decree laws issued by the government are irreversible), but reversing certain other vetoes requires a super-majority of two-thirds. These includes legislation in such key areas as “the budget system,” which means the president has the power to veto future budget legislation or refer it to the courts to test its constitutionality a power former presidents Jose Ramos-Horta and Taur Matan Ruak used at different times.
An important difference between Ruak’s veto of the 2015 budget and any potential veto during this parliament is that Ruak was exercising his powers in the era of the de facto national unity government, which meant the government could draw on a supermajority to reverse it. Fretilin’s twenty-three seats in the new parliament means that non-Fretilin forces are one short of the super-majority of forty-three seats.
The political stalemate of the past ten months, and the effective freeze on government spending, have inevitably affected the economy. Given this, insiders believe the president is highly unlikely to veto the first budget, but could, like other presidents before him, do so in future, and with fewer prospects for reversal. This indicates the potential scope of “cohabitation”-related standoffs over the next few years.
With a clear majority, the AMP will now set about forming a new government and passing a much-needed budget. The major question yet to be answered is how the coalition will reconcile the CNRT’s focus on megaproject-led spending with the PLPs focus on basic development spending in health, education and agriculture. On the campaign trial, Gusmão acknowledged “mistakes” by his previous governments and gave the floor to the PLP and KHUNTO leaders to address these issues in rallies a sign he was listening and open to change. Some AMP supporters see this as a second chance for the great resistance leader to consolidate his other legacy as a leader of government. Though his previous governments brought social stability, economic growth and much else, there is a sense that spending on basic development measures has lagged badly, and far too much has been spent on big infrastructure projects.
Election day passed without major incidents, though comments from Gusmão on the day that he “would not accept the result if it was not fair” were unhelpful, and built on a series of complaints from AMP in the campaign which were not backed by strong evidence. In its preliminary report, the largest observer mission referred to the “injudicious and inappropriate language of some political representatives” and noted that allegations about the election process are “serious in character and, if made, need to be supported by evidence.” On Monday, Fretilin raised similar concerns over the vote in Oecusse, again without immediately offering compelling evidence. Timor-Leste’s two electoral agencies again did an excellent job despite the pressure of the re-run campaign and limited budgets.
Saturday’s win for the AMP win was a clear and decisive one, and many in Timor will be relieved at the end of political uncertainty and protracted coalition negotiations. Though some in AMP saw the election as a chance to put Fretilin away for good, and some projected a massive win, the Fretilin vote grew significantly for the first time since the post–crisis election of 2007, demonstrating the impact of new affiliations by independents and, perhaps, new support from elements of the church. Though Fretilin is deeply disappointed by the defeat, it has increased its support base in 2018, and is likely to remain the biggest single party in the country. The AMP may come to see Fretilin’s continuing strength as a reminder of the need for discipline and unity in their three-party coalition, and hence as a positive.
Great challenges lie ahead for the new government, including the need to diversify the economy before the sovereign wealth fund, based on finite oil and gas reserves, depletes somewhere in the late 2020s. In this process, it its clear it will face a strong opposition determined to hold it to account.
Michael Leach is Professor of Politics and International Relations at Swinburne University of Technology.