Opinion No secret, this spying stinks

The more we learn about Australia's spying in East Timor and the Attorney-General's role in approving ASIO search warrants, the stronger the case becomes for a full parliamentary inquiry, writes Christopher Michaelsen.  

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OPINION: Let's get this straight: the foreign minister (Alexander Downer) of a developed country (Australia) instructs a senior intelligence officer to conduct a bugging operation at the government premises of a developing country (Timor-Leste). The intelligence officer assembles a team of agents (ASIS), who, disguised as aid workers, install bugging devices in the course of renovations carried out at the premises of that foreign government (in Dili).

These bugging devices are then used to eavesdrop during negotiations about a lucrative deal between the two countries exploiting gas fields which are geographically located in the exclusive economic maritime zone of the developing country.

About a decade later, a well-respected and decorated former intelligence officer who participated in the bugging operation blows the whistle.

He feels uneasy about the fact that the external intelligence service (ASIS) was potentially employed to further commercial interests of a non-government corporation (Woodside Petroleum) reaping the benefits from the multi-billion dollar deal. He is also concerned that the foreign minister who authorised the bugging operation, upon retiring from politics, became an adviser to that very corporation.

Alarmed about these revelations and feeling cheated, the developing country, a good international citizen, relies on a dispute settlement provision in the bilateral treaty to launch judicial proceedings at an international tribunal in The Hague to determine the validity of the agreement.

On the eve of those judicial proceedings, the developed country's domestic security agency (ASIO) conducts raids on the home and premises of the lawyer representing the developing country (Bernard Collaery) as well as the home of the whistle-blowing ex-agent. These raids were requested by the director-general of the domestic security agency who, 10 years earlier, served as the very senior intelligence officer directing the bugging operation of ASIS.

What sounds like the perfect script for a Hollywood blockbuster is in fact the story behind the latest episode of spying allegations involving the federal government. The Coalition's response has unsurprisingly been secretive and defensive. The ASIO operation on Tuesday was justified by pulling the convenient trump-card of "national security". As political pressures mounted throughout Wednesday, Attorney-General George Brandis then issued a ministerial statement shedding at least some light on the basis for the ASIO raids.

It is clear that the latest spying row raises a range of moral, ethical and political questions. But what are the legal issues involved? Was it lawful for ASIS to conduct the bugging operation in 2004? Was it lawful for ASIO to raid the premises of Mr Collaery and the former ASIS officer? And what are the legal merits of the case that began in The Hague on Thursday?

The legal basis for ASIS' operations can be found in the Intelligence Services Act 2001. Section 6 of the act lays out, in broad terms, the agency's functions which include obtaining intelligence about the capabilities, intentions and activities of people or organisations outside Australia. The bugging of the premises of a foreign government can, of course, fall under this provision, especially if it is conducted under the instruction of the foreign minister. While the commercial dimension of the gas deal between Australia and Timor-Leste gives flavour to the eavesdropping operation, it does not make it unlawful under domestic Australian law per se.

However, the situation under international law is different. While spying is not specifically prohibited, states have a positive obligation not ''to intervene, directly or indirectly, for any reason whatsoever, in the internal or external affairs of any other state''. The bugging of government premises most certainly amounts to a breach of that non-intervention principle. Yet it is unclear whether this potential breach of international law will determine the outcome of the arbitration in The Hague.

In those proceedings, Timor-Leste is seeking to invalidate the gas treaty concluded with Australia in 2006. It argues that Australia failed to negotiate in good faith. This claim alone, however, hardly constitutes an accepted ground for invalidating a treaty under international law. The question that the arbitral tribunal may thus need to determine is whether Australia's bugging operation amounted to ''fraud'' or whether Timor-Leste can rely on ''error'' or a ''fundamental change of circumstances'', both recognised grounds for invalidating an agreement under the Vienna Convention on the Law of Treaties. Timor-Leste's case does not seem particularly strong.

This makes this week's shady ASIO raids even more interesting (and paradoxical). It is unlikely that they are capable of disrupting the proceedings in The Hague. If anything, they have damaged an otherwise strong case for Australia and may have negatively influenced the tribunal.

The raids are also highly questionable from a domestic legal standpoint. The Attorney-General argued that the raids were covered by section 25 of the ASIO Act 1979. This section permits ASIO to request search warrants that ''substantially assist the collection of intelligence'' in respect of ''security''. Security is defined to mean the protection of the Commonwealth and its people from espionage, sabotage, politically motivated violence, attacks on Australia's defence system, acts of foreign interference, or the protection of Australia's territorial and border integrity from threats. It is difficult to see how legal documents relating to an international arbitration classify as any of the above.

Granted, the disclosure of information by a former ASIS officer may constitute a criminal offence under the Intelligence Services Act 2001 (if it is not excused by federal whistleblower protection legislation). But ASIO, as an intelligence service, simply does not have jurisdiction to investigate criminal offences, even if they concern national security matters.

It is for this reason that the Attorney-General's approval of ASIO search warrants this week demonstrates a serious lack of judgment. In light of the non-justiciability of that authorisation, as well as the non-justiciability of ASIS' conduct in 2004, the case for a full parliamentary inquiry into this story becomes all the more compelling. It would make for an excellent movie, too.

Dr Chris Michaelsen is the Director of Human Rights and Social Justice programs at UNSW's Faculty of Law. 

This opinion piece was first published in The Canberra Times.