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Timor: Our lingering, damaging bad-faith legacy

Bernard Collaery (Lukas Coch  AAP)
Bernard Collaery - object of a scandalous prosecution by the Australian government (Lukas Coch,  AAP)

BERNARD COLLAERY
| Pearls & Irritations | Edited extracts

This article by barrister Bernard Collaery presumes some prior knowledge by readers of his scandalous prosecution by the Commonwealth government. Wikipedia has a thorough profile here of Collaery and the shocking Witness K Trial. The story from SBS here brings the affair up to the moment. In this stunning piece Collaery provides a compelling first-hand account of the damage to Australia’s international reputation and to the standing of some prominent Australian lawyers and politicians - KJ

CANBERRA - Canberra’s conduct towards the Timorese was so grave that Australia continues to be regarded within international legal circles as a cheat.

Our legal team returned to Cambridge, England, in early 2014 from the International Court of Justice at The Hague in the Netherlands.

We had endured the truly shameful experience of watching and listening to Australia’s Solicitor-General and some of his team scornfully defend Australian misconduct at Dili in East Timor.

Our bar leader, Sir Elihu Lauterpacht QC, doyen of international law and former ad hoc judge of the International Court, was 84 years old and on his last brief.

Eli sought reassurance from me that I too had seen Australia’s Professor James Crawford SC, a member of the Australian team, momentarily lower his head as the Solicitor-General spoke.

Eli admired James and had watched him intently as he sat with the Australians. James would occasionally walk to Eli’s study at Herschel Road to discuss the case ad referendum (in accord with his role).

Eli regarded the brilliant James both as a protégé and long-time friend. He had quietly added his own voice to others who had a say about a forthcoming vacancy on the bench of the International Court.

Xanana Gusmao, prime minister of East Timor, had also ensured the support his government and that of other Lusophone (Portuguese-speaking) countries’ support.

Issues aside, we all hoped that James’ appointment was imminent. It was.

Eli’s concern was that the Australian Solicitor-General and his team from the Attorney-General’s and Foreign Affairs departments were defending the indefensible using an alleged ‘principle’ of diplomatic and intelligence agency usage, namely, ‘neither confirm nor deny’.

Eli’s words to our team resound to this day:

“In this case it is misplaced. This is the culmination of years of bullying exploitation and genocide.

“As if that could have been employed at Nuremberg over the starvation of the occupied nations.

“James knows it, you can’t elevate tactical evasion into a legal maxim. It has no place in adjudication.”

Sir Elihu Lauterpacht QC (1928-2017)
Sir Elihu Lauterpacht QC (1928-2017)

Eli would add bitterly: “It is a contempt of the good-faith principles that bind international arbitration proceedings.”

Eli had worked with Australia’s international law team led by attorney-general Lionel Murphy QC and the eminent solicitor-general Maurice Byers QC during Australia’s 1970s challenge to French nuclear tests in the Pacific.

James aside, Eli was appalled by the conduct of the new generation of Australia’s international lawyers.

He would lament: “There is no way for Australia out of this but to apologise and make amends.”

Both Eli and James have since left this earth. Two great international lawyers of integrity.

The trouble remaining for the Coalition government is that internationally wrongful acts come with a long memory and have consequences.

In Australia’s case there were two consequences. The first was the question of reparation for the loss caused.

Sadly, for reasons yet to be publicly disclosed, Australia believes it has secured East Timor’s acceptance of a ‘release without satisfaction’.

The second, separate from the primary obligation, is still very much alive and involves Australia’s recognition that it engaged in an internationally wrongful act.

This embraces a concept no different from that applied at the International Criminal Court and daily in Australian courts, namely, acceptance of wrongful conduct and recognition that there won’t be a repeat.

The Coalition offers neither, refuses to fess up and hides behind a law a wedged Opposition failed to block.

By claiming a prejudice to national security, the government is attempting to bind the courts to its unapologetic conduct.

Its conduct towards the Timorese was so grave in international law that Australia continues to be regarded, within influential international legal circles, as a pariah state. An international cheat.

It is seen as a nation stooping again East Timor after years of collaboration with Indonesia; a nation stealing from the impoverished Timorese under the guise of good-faith treaty negotiation.

The stigma is long-lasting and, until there is acceptance and a national apology to the Timorese and the international community, it will remain an unenviable legacy for Australia’s policy makers.

A way out of the dilemma had presented itself to then prime minister Julia Gillard in December 2012.

If she had been properly advised, Gillard had ample time to order an inquiry into the East Timor affair.

Inevitably, this would have determined the misconduct as maverick and beyond statutory safeguards in the Intelligence Services Act 2001.

In the absence of a federal ICAC, the proper response lay with an Australian Federal Police commissioner with nous and courage.

The international community would have understood thereby lessening the damage to Australia’s reputation.

East Timor prime minister Xanana Gusmao, an erstwhile friend of Australia, in 2014 had offered Gillard a quiet and confidential retraction of the fraudulently procured maritime boundary treaty.

To recall this is to ponder once again the years of Australia’s brash and incompetent foreign policy making under Alexander Downer.

Despite Australian actions, prime minister Gusmao astutely held off filing public proceedings against Australia for many months while Kevin Rudd and then Gillard worked the levers to secure for Australia a casual vacancy coming up at the UN Security Council.

In his efforts, Gusmao was joined by an equally generous but similarly outraged president Susilo Bambang Yudhoyono of Indonesia.

It was an uplifting experience to observe mature statesmanship in action despite silly provocation from Australia. Does this still sound familiar?

In domestic Australian law, lawyers who either advise or are accessories to lawbreaking face disciplinary proceedings or worse.

If accused of such conduct, a practising lawyer seeking to plead ‘neither confirm nor deny’ may risk contempt of court proceedings or worse.

The few public servants holding practising certificates as lawyers, and who have knowingly participated in this, should face disciplinary action at the least from their Bar Councils or Law Societies. They know this.

And like the participating bureaucrats, they still face reputational damage if there is proper disclosure of the deplorable misuse of a vitally important security agency.

It is not just members of the Coalition government in Canberra who fear exposure.

It is nothing short of an affront to precepts of the rule of law to have watched a corrupt government continue to employ such individuals.

Such is the incompetence and institutionalised deceit in Coalition foreign policy making, the exemplar being East Timor, that some who have participated openly lay claim to be ‘experts’ all the while anxious that there be no public examination of their claimed expertise.

ClipMeanwhile, truant Australia stands alone in front of the class, unabashed, unapologetic and the subject of ridicule and quiet mirth in Beijing, Washington, Oslo, London, Jakarta, Honiara and elsewhere.

All of this a Coalition legacy from a most unprincipled era in Australian political history.

We owe the Timorese and the world an apology. Will 2022 bring such redemption?

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