The tribunal's ruling on open hearings

The administrative review tribunal (ART) has ruled in favour of former senator Rex Patrick in the latest round of the ASIS bugging Timor-Leste scandal, ordering the commonwealth to hold unclassified parts of a three-day late-November hearing in public.

The commonwealth had argued that even sections of the hearing open to the public should stay behind closed doors, in case an official accidentally said something they should not. It also proposed barring the media and public from the open hearings altogether, while letting them read a transcript vetted by the foreign intelligence agency - a proposal the tribunal rejected.

ART deputy president Peter Britten-Jones sided with Patrick, finding that the officials involved were highly qualified and that the danger of secrets slipping out was remote. "The risk of an inadvertent disclosure of certificated material is negligible," he wrote in his ruling.

What the 2004 operation was about

Patrick, a transparency advocate, is seeking documents about whether Australian spies bugged Timor-Leste in 2004 to gain an edge in oil and gas negotiations. According to the allegations, ASIS operatives planted listening devices in key Timor-Leste government offices to learn the country's bottom line, negotiating tactics and cabinet members' views.

The Australian government stands by its Glomar response, neither confirming nor denying that the bugging happened or that any relevant documents exist.

The material at stake relates to Australia's strategy for the Timor Sea after Timor-Leste became independent from Indonesia in 2002, including shared control of the Greater Sunrise gasfields, whose resources are estimated to be worth more than $50bn. ASIS contends the records themselves could damage national security and Australia's standing with other countries.

How the scandal unfolded

The paper trail reaches back decades:

• •In 2021, Patrick took the National Archives of Australia to the tribunal over its heavy redactions to a 2000 cabinet submission and related minute on Timor Sea maritime boundary negotiating strategy; the tribunal later ordered fewer redactions. His bid continued with a request for 2004 cabinet documents held by the archives.
• •The released 2000 documents revealed cabinet's fear that Timor-Leste's independence would void Australia's earlier 50/50 revenue-split agreement with Indonesia over Timor Sea oil and gas.
• •In 2006, Australia secured a 50/50 split of the Greater Sunrise fields - 450km north-west of Darwin and 150km south of Timor-Leste - benefiting a Woodside-led joint venture.
• •The bugging operation surfaced in 2013, when former ASIS officer Witness K approached lawyer and former ACT attorney general Bernard Collaery, who also acted for Timor-Leste. The pair tried to assist Timor-Leste in its Hague arbitration dispute, before Collaery's office was raided and Witness K's passport was seized.
• •Timor-Leste withdrew its espionage claims in The Hague in 2017 as a confidence-building measure, and a new maritime border was signed in 2018. Proceedings against Collaery were dropped in 2022.

Patrick's response and what comes next

Patrick has called the saga the "most open secret in the history of Australian spying" - perhaps even the world's - and compared the administrative proceedings to an Austin Powers movie.

Timor-Leste's president, Jose Ramos-Horta, made a similar point in a 2019 affidavit, saying further disclosure would not harm Australia.

The commonwealth's side of the argument was put last Thursday by deputy chief solicitor Justin Davidson, who said the stakes were very high and the risk hard to mitigate. "I'm not, frankly, beyond making a mistake," Davidson said.

The case returns in late November for the full three-day hearing, where ASIS deputy director general Ewan McMillan and Department of Foreign Affairs and Trade deputy secretary Michelle Chan are due to give evidence.