Former Timor-Leste president Jose Ramos-Horta has called upon the Australian government to drop the prosecution against former Australian Secret Intelligence Services (ASIS) Agent, Witness K, and his lawyer, Bernard Collaery. Ramos-Horta joins a chorus of human rights organizations and activists to condemn the case, including Human Rights Watch and the Movement Against the Occupation of the Timor Sea (MKOTT).
On June 2, 2018, Australian MP Andrew Wilkie used Parliamentary Privilege to reveal that the pair were being prosecuted for their involvement in revealing the Australian bugging of Timor-Leste offices during negotiations of a treaty. Wilkie’s revelation, in conjunction with recent protest, raises the question; what precedent does the prosecution establish for future whistle-blowers? Is the prosecution fair? And ultimately, how does the case characterize Australia? In considering these questions, this article will first consider the historical context of the prosecution, before considering the Ramos-Horta’s arguments against the case and its broader implications.
In 2004, ASIS planted listening devices in the cabinet office of Timor-Leste to gather information concerning negotiations of the Timor Sea Treaty which determined exclusive economic zones within the Timor Gap. This area, rich in oil and natural gas worth forty billion dollars, is highly contested. At the time, the division of territory favored Australia. According to a court summons detailed in The Guardian, Witness K ‘unlawfully communicated’ this bugging to Collaery, who in turn notified several journalists.
Whilst the actions of Witness K and Collaery may seem morally justified, they are fundamentally illegal. The pair have been charged with conspiring to breach Section 39 of the Intelligence Services Act. Essentially, the Section dictates that an individual commits an offence if they communicate information that was ‘acquired or prepared by or on behalf of ASIS’ whilst being, or having been, involved with ASIS.
Despite this, Jose Ramos-Horta’s recent protest of the prosecution provokes consideration of ethics of the law, and whether in this specific case it is being manipulated. In statements recorded by The Guardian, Ramos-Horta stated that Collaery and Witness K acted in ‘good conscience’, and indeed this sense of morality is reflective of the ‘very best of Australia’. It is a sentiment echoed earlier in an editorial response published by the Sydney Morning Herald, which labelled national interest as ‘imprecise’. Similar to Ramos-Horta, the author suggested the bugging scandal generated a ‘reputation for deceit, duplicity’ and ‘bullying’. Within such a framework, in which ‘silence’ would have ‘condoned the tragedy’, Witness K and Collaery’s actions are morally righteous. This subsequently establishes a paradox; How do you mitigate between what is ‘right’ and what is legal? Much akin to national interest, perceptions of what moral action constitutes can be ‘imprecise’ and thus difficult to navigate within legal systems. Nevertheless, the far-reaching implications of this paradox within the context of the prosecution are suggestive of injustice.
Whilst Ramos-Horta’s comments draw attention to the philosophical quandaries surrounding the case, focus should also be directed to its associated political and democratic implications. Specifically, the prosecution may act as a deterrent for future whistle-blowers to expose misconduct and thus, strengthen the government’s ability to commit morally and politically dubious actions. This underlying sense of collusion and deceit is further exemplified through the case being relegated to a closed court. Cumulatively, this characterizes the case as distinctly unjust.
Fundamentally, Ramos-Horta’s concerns about the prosecution of Witness K and Collaery are well-founded, and should be seriously considered by both the Australian government and society. As citizens, it is imperative that Australian society recognize the distinct injustice associated with the case, so as not ‘condone’ this contemporary ‘travesty’.
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