By Tom Allard
The Australian Secret Intelligence Service provided the security advice that denied one of its former spies a passport to travel to a tribunal hearing at The Hague on the grounds he could be "cultivated by a foreign power". The Australian Security Intelligence Organisation usually provides such assessments.
The security ruling comes amid allegations the current ASIS head, Nick Warner, was "aware" at the time of the infamous bugging of East Timor by the foreign spy service's agents in 2004.
Bernard Collaery, the lawyer for the former ASIS spy known as Witness K, has alleged a bipartisan "cover-up" of the infamous bugging of East Timor in 2004.
The allegation of Mr Warner's awareness of the spying came during an incendiary address on Monday when Bernard Collaery, the lawyer for the former ASIS spy known as Witness K, also alleged a bipartisan "cover-up" of the saga.
The 2004 espionage operation is the subject of binding arbitration before an international tribunal in the Hague and the former ASIS spy, who led the clandestine eavesdropping in Dili in 2004, was to appear as a star witness for East Timor.
Nick Warner, head of the Australian Secret Intelligence Service.Credit: Alex Ellinghausen
Under the guise of an aid project, ASIS agents infiltrated East Timor's government offices and inserted listening devices that recorded the conversations of the fledgling state's negotiators when they were in talks with Australia over the huge Timor Sea oil and gas reserves.
If the Hague tribunal rules in East Timor's favour, the treaty will be annulled.
Witness K will not be able to appear at the hearing in person, although he should be able to give video evidence.
Mr Collaery, a former attorney-general of the ACT, said the reasoning behind the passport ban – issued by Foreign Minister Julie Bishop on ASIS advice – was "laughable" as Witness K was a decorated officer.
While ASIO typically makes the security assessments that underpin the denial of passports, Mr Collaery said this was not the case with Witness K.
"The head of Australia's national security organisation, the Director-General of ASIO Duncan Lewis, has not intervened with respect to the passport. That says it all," Mr Collaery says in a copy of his speech delivered to protesters on Monday outside Parliament House in Canberra.
"The competent authority that is advising Foreign Minister Julie Bishop is ASIS. I can now reveal that the head of ASIS, Nicholas Warner was involved as a special adviser at the time of the mission to bug the East Timorese cabinet."
Mr Collaery later declined to specify what Mr Warner's special advisory role was, citing security laws. "In the position he occupied, he was certainly aware of the operation," he told Fairfax Media.
In 2004, Mr Warner finished his role as head of the Australian mission to the Solomon Islands and became deputy secretary of the department of Foreign Affairs.
"In any working democracy, the current position of Foreign Minister Julie Bishop and her adviser Nicholas Warner could bring down a government," Mr Collaery said.
Mr Collaery said the saga had not produced such an outcome because the opposition was "complicit" and "hopelessly compromised".
"It was to [then prime minister] Julia Gillard that [East Timor leader] Xanana Gusmao delivered a letter I drafted complaining in confidence about the bugging and asking that the matter be dealt with bilaterally in confidence."
The Gillard government responded by authorising the "installation of listening devices and other measures" in Mr Collaery's Canberra office, he said.
"What did the Labor government do? The answer is nothing for justice and everything for a cover-up," Mr Collaery said.
Shortly after Labor was ousted, the new government approved ASIO raids on Mr Collaery's office and the home of Witness K, generating outrage from East Timor after its legal documents were seized. The International Court of Justice forced Australia to cease spying on East Timor and its lawyer and return the documents.
Mr Warner and ASIO did not respond to requests for comment by deadline. Former Labor attorney-general Mark Dreyfus declined to comment. Ms Bishop's office did not return calls.