complicity, as the record shows an absolute nonsense proposition, has, understandably, resulted in an abundantly cautious Timor-Leste terminating this aspect of my retainer. Once again the Solicitor-General knew or should have known the likely consequences of his allegations. The basis upon which the Solicitor-General embarked on his course of conduct awaits due enquiry. Despite the exigencies of sudden interlocutory litigation it takes a brave, some may say foolhardy, practitioner to point the finger down the Bar table and allege crime. The more so without a Brief of Evidence. And the more so in light of the standard we all know that applies. Standing like a beacon before the Solicitor-General’s eyes was the last celebrated case involving ASIS where, relevantly, Chief Justice Gibbs addressed the strength of evidence required to justify an allegation (in that case on the question of privilege): It would be necessary to show, at the very least, that there is reasonable ground to believe that any plaintiff whose identity it is sought to disclose is implicated in the commission of an offence. Put in another way, at least what has to be shown prima facie is that there is "a bona fide and reasonably tenable charge of crime" against any plaintiff whose identity is sought to be disclosed. The common law background to the role for ASIS is well known to all the actors in this affair. The Director General of ASIS Irvine could not have been unaware of the notorious “ASIS Sheraton Hotel” case that led to the placing of ASIS on a statutory footing following a training operation debacle on 30 November 1983 in Melbourne, Australia when ASIS agents allegedly committed criminal trespass and other offences during a training exercise. Victoria police action led to an important High Court decision, excerpts of which resonate with the facts concerning the 2004 Dili mission 20 years later, namely: Gibbs CJ: It is fundamental to our legal system that the Executive has no power to authorize a breach of the law and that it is no excuse for an offender to say that he acted under the orders of a superior officer. Mason J put the issue more succinctly: For the future, the point needs to be made loudly and clearly, that if activities involve breaches of the law they are liable to attract the consequences that ordinarily flow from breaches of the law.
The IGIS in reporting to its Minister lacks independence especially when it is the responsible Minister who has driven the unlawful conduct. It would have been an easy matter for Ms Thom to enquire into the documentary records of the Dili mission to determine whether the Dili mission met the then Cabinet’s National Security Committee’s requirements. I doubt whether she would have found that my classmate Phillip Ruddock then Attorney-General and member of the Committee had approved the Dili mission. A first step in the analysis which in my view a Parliamentary or Judicial Inquiry into the Australian Government misconduct in 2004 and 2013 must now undertake may start with the Intelligence Services Act 2001 (“ISA”) as it was in 2004. Section 11 of the ISA declares that: The functions of the agencies are to be performed only in the interests of Australia’s national security, Australia’s foreign relations or Australia’s national economic wellbeing and only to the extent that those matters are affected by the capabilities, intentions or activities of people or organisations outside Australia. (emphasis added) How was ‘Australia’s national security… affected by’ Prime Minister Alkatiri and his Cabinet? The instructions allegedly given by the Director General were to ensure that there was a clandestine recording of discussions to be held by the negotiating team before and after negotiating sessions with the Australian team. The central issue for the negotiation was the ratification of the IUA held up over Timor-Leste’s dissatisfaction with the 18.1% revenue split agreed to in the 2003 agreement. Australia’s interest in the negotiation was explained by a senior DFAT official, Geoffrey Raby, during testimony before an Australian Parliamentary Committee: Dr Raby: On the first question of the relationship between the IUA and the treaty, the question, as I recall it, was: what was in Australia’s national interests? As I said last time, from the government’s point of view Australia’s national interest will be maximised and preserved if the treaty, the IUA and all other