[Theme music]

ELIZABETH:

From Schwartz Media, I’m Elizabeth Kulas. This is 7am.

As Scott Morrison celebrates Timor Leste’s independence, tension over the Witness K’s case continues to undermine the relationship. At the same time, Canberra is standing up to Beijing over the imprisonment of Chinese-Australian writer Yang Hengjun. Paul Bongiorno on the political calculus that separates the two.

[Theme music ends]

Archival tape — Unidentified Timor-Leste people:

“Viva Timor Leste”

ELIZABETH:

Alright Paul, let's get right into it. Scott Morrison is in Timor-Leste today. He's there to celebrate.

PAUL:

Yes he is...

Archival tape — Unidentified Timor-Leste people celebrating.

PAUL:

The East Timorese are celebrating the fact that 20 years ago they braved the glare of the occupying Indonesian army to vote in a referendum to separate from Indonesia.

ELIZABETH:

Paul Bongiorno is a columnist for The Saturday Paper.

PAUL:

78 percent of the population turned up, many waiting hours in the full blaze of the sun to record that vote. So among the guests of honor attending today besides the Australian Prime Minister Morrison, is former Prime Minister John Howard, who played a key role in convincing President Habibie of Indonesia that Timor-Leste should be given autonomy. Also on board will be the opposition leader Anthony Albanese; he arrived today with the Prime Minister.

ELIZABETH:

And the Prime Minister's presence of course brings with it some tension.

PAUL:

Yeah that's true despite the celebration, Australia has a strained history with his country going all the way back, in fact, in 1975 when Australia condoned the occupation of East Timor by the Indonesians. But there's a more recent strain, if I can put it that way, at play here former president and independence champion Jose Ramos Horta has said the celebrations will have a bitter taste if Witness K and Bernard Cleary are not free.

Witness K, a former Australian spy and whistle blower along with the lawyer Bernard Cleary, are being prosecuted for revealing the 2004 bugging of the Dili government during crucial commercial negotiations with the Australian Government over oil and gas rights. Rights that would depend on where you put the maritime boundary between Timor-Leste and Australia.

Former president Janata Gusmao gave an interview to the ABC Four Corners program on Monday saying he would like to see the prosecution dropped immediately of these two men.He said he would come to Canberra to testify and embarrass the Australian Government if the court case goes ahead.

Archival tape — Unidentified male interviewer:

“And is that evidence the Australian government may not want to hear in court?’

Archival tape — Former president Janata Gusmao:

“Maybe.”

Archival tape — Unidentified male interviewer:

So are you saying some secrets that may embarrass previous governments?

Archival tape — Former president Janata Gusmao

“Ummmm, I believe so”

ELIZABETH:

And how was that bugging, .of the offices of the Timorese government, how was it used?

PAUL:

Well that bugging gave the Australian negotiators the upper hand and resulted in the drawing of a boundary that gave Australia a 50 per cent share of the resources estimated to be worth upwards of 50 billion dollars. Even though the gas and oil was only 150 kilometres from Timor-Leste, where it was 400 kilometres from Australia's shore.

Archival tape — Unidentified female Four Corner’s guest:

“...the people who did the fraud, the illegal fraud, the spying, the lowdown action against Timor, they’ve it got away with it, they’re not being charged with anything and they should be. And here we have two truth tellers who are now being charged…”

ELIZABETH:

And Paul, how was that Four Corners episode received in Canberra?

PAUL:

Well um, interestingly it was received in a very muted way. The Opposition believes that the court case should be dropped but it certainly didn't jump up and down and demanded it and the Attorney-General Christian Porter said don't look at me it was the advice I received from the public prosecutor. The push comes from the context of the Australian Government becoming increasingly paranoid and intolerant of issues relating to what they see as national security. It's clear that the Australian Signals Directorate wants to send a firm message that if anyone freelancers, even for a good cause, if one of our spies thinks we're doing something that is immoral, it doesn't matter, we will fiercely prosecute them.

ELIZABETH:

And Paul what were the implications of the leak by Witness K?

PAUL:

Well what the leak did, and knowledge of the bugging did, it gave Timor-Leste a very strong grounds to go to the International Court of Justice in The Hague. So as a result of that a new negotiation took place. The border was drawn in a different place and Timor-Leste has ended up with 70 per cent of the resources and Australia 30 per cent. That new agreement will be signed today in Dili.

ELIZABETH:

What about for Witness K and Bernard Cleary. Now they're facing, basically criminal prosecution?

PAUL:

Well that's exactly right. Um, one would hope and imagine that Witness K in this situation is a whistleblower; that is someone who is a loyal Australian citizen blowing the whistle on wrongdoing and Bernard Cleary is a lawyer who is defending his right to do so before the court. But they've both been prosecuted for breaching Australia's secrecy and they face a jail term if they're found guilty.

ELIZABETH:

Paul, before it got to Christian Porter this prosecution had come across the desk of other attorneys general, hadn’t it?

PAUL:

Well former Attorney-General George Brandis refused to sign off on it. Brandis of course was very embarrassed, Australia was embarrassed before the International Court, because the court found that while Cleary’s Witness K were due to go to the Hague to give evidence, police were sent in to raid Cleary's home and office and to raid Witness K. Witness K had his passport confiscated and Cleary's client/lawyer documents were seized. The Hague found this to be simply outrageous and ordered the Australian police not to access the documents that they had taken.

So Attorney-General Brandis after this international embarrassment that Australia was here acting like a tinpot dictatorship, well he sat on the advice he was receiving from the prosecutor and from our spook agencies and he didn't sign off. People close to Brandis say he refused to sign off. The current Attorney-General says, well he didn't get around to getting all the new advice that he was seeking.

One of Australia's most eminent counsels Bret Walker SC says usually, traditionally it's simply not in the public interest to prosecute this sort of thing. Porter's record in defending freedoms and transparency I've got to say, is looking very tawdry.

[Music starts]

ELIZABETH:

We'll be right back.

[Music ends]

[Advertisement]

ELIZABETH:

Paul the other big diplomatic story this week was the formal arrest in China of the Australian Chinese dual citizen Dr Yang Hengjun.

PAUL:

Yes, Yang Hengjun was a Chinese diplomat for a while. He moved to Australia almost 20 years ago and was granted citizenship here. He's also a prolific blogger with millions of followers, ethnic Chinese around the world, but also in China itself. And he's also a writer of spy novels. This of course is got him into some trouble because the novels the plots of the novels the Chinese government believe come directly from his experience as a Chinese diplomat.

He's also, and has been, an advocate for democratic reform. Now his history with the Chinese government is complex. He went missing for two days in China in 2011 thought to have been arrested. More recently he was detained after flying from New York to Guangzhou in January. He’s also been held largely in solitary confinement by the Chinese authorities for the last seven months, authorities announced this week that he'd be charged on suspicion of espionage. It's a charge that could potentially attract the death penalty. Well Foreign Minister Marise Payne put out a strongly worded statement raising her concerns over the treatment of Doctor Yang. In fact it is clear that Payne's statement and the strength of it comes because the people arguing for Dr. Yang believe that this is the only way you'll be released. Payne says there's no evidence that Yang has ever spied on behalf of Australia.

Archival tape — Marise Payne:

“...we are seeking for Dr Yang’s detention, obviously, for him to be released in the first instance, particularly if he’s only being held for his political beliefs, but most importantly, that if he is to be detained, that he is detained in accordance with the expectations accorded to him through conventions and international law…”

PAUL:

Payne is aware that Yang was kept in what's called a black detention site known as residential surveillance where prisoners are kept on constant watch, a guard in the room under bright lights and they're subject to continuous interrogation, a form of brainwashing. She drew attention to international human rights law, pointing out those provisions that prohibit torture and inhumane treatment, guard against arbitrary detention and that the international law protects the right of freedom of thought, conscience and religion.

Archival tape — Marise Payne:

“...we’ve been at pains to say that he should be afforded access to his lawyers. That he should be afforded the opportunity to communicate with his family; they are reasonable, basic entitlements and we will be seeking to prosecute that case …”

PAUL:

In January, soon after the arrest the chair of the parliamentary intelligence committee Andrew Hastie took up the case in very forceful terms. He said it was possible Yang's arbitrary detention was designed to deter members of the Australian Chinese diaspora from talking openly and honestly about political questions near to their hearts. He said it's also possible this was an act of Chinese statecraft designed to serve Chinese interests in a larger geopolitical landscape.

ELIZABETH:

What is it do you think China is doing here with Dr. Yang?

PAUL:

Well look the suspicion is that China’s engaging in what's called hostage diplomacy. China’s under siege from Donald Trump in the trade war and angry at feeling targeted by Australia's foreign interference laws. It's now using Yang as leverage in the relationship. Beijing is sending a message or maybe several messages. Australia's support for peaceful protests for democracy in Hong Kong no doubt is seen as an attempted undermining by us of the mainland's peace and stability as well. It's further evidence that Australia is still in the diplomatic deep freeze.

ELIZABETH:

And did Marise Payne express a view on that?

PAUL:

Well yeah, I mean it's clear that the foreign minister is on a very sticky wicket. At a press conference Wednesday morning Payne said that the government had no reason to think that Yang's arrest is a retaliation from Beijing or connected to other issues. But we do know last year two Canadians were detained in a move that many saw as retribution for the arrest of a Huawei senior executive in Canada.

ELIZABETH:

Other than raising this case publicly as Payne has done this week, do we know what the foreign minister has done behind closed doors?

PAUL:

Yes interestingly Marise Payne in her statement revealed that she's twice personally face to face raised Dr Yang's plight with her counterpart the Chinese Foreign Minister Wang Yi. Well the Chinese Foreign Ministry replied with a very blunt statement to Payne. Indeed it was just as blunt as Payne’s was to it. It said and I quote China is strongly dissatisfied with Australia's statement on this case and would like to stress that China is a country with a rule of law. And Australia should earnestly respect China's judicial sovereignty and not interfere in China's handling of the case in accordance with the law in any way.

ELIZABETH:

And what about the Prime Minister, has he said much on the case and has he commented on the potential for it to affect the relationship with China?

PAUL:

Morrison, of course, was a guest at the G7 meeting in Biarritz. He has tried very hard to to be even handed, for example in talking about the trade war between China and the United States, he did say that there are real issues here but he said while America has issues with China, China’s got issues with America.

Archival tape — Unidentified female interviewer:

“Will Australia do requested by Beijing and butt out?”

Archival tape — Scott Morrisson:

“We’ll stand up for our citizen and we’ll expect him to be treated appropriately and his human rights to be respected. There’s their own justice process that they’ll follow in China and that’s appropriate but these suggestions that he’s acted as a spy for Australia, absolutely untrue and we’ll be protecting and seeking to support our citizen as we have been doing for some period of time. We make no apologies for standing up for one of our citizens.”

ELIZABETH:

But there is tension in the government over how these sorts of matters are handled. I mean for example, you had Michael McCormack as acting PM out on Tuesday….

PAUL:

Well yeah, I mean McCormack played the dumb country yokel really. He said, well he didn't know a great deal about the case.

Archival tape — Unidentified female interviewer:

“...but are you disappointed though with how China has handled this situation?”

Archival tape — Michael McCormack:

“Well look, it’s not for me to say I’m disappointed or not. The fact is, it’s happened there are protocols in place and processes in place…’

Archival tape — Unidentified female interviewer:

“Do you have concern for the treatment of this man, has he been tortured?”

Archival tape — Michael McCormack:

“I’m not sure, I don’t know…I can’t comment...’

Archival tape — Unidentified female interviewer:

“You don’t seem very concerned about — ?”

Archival tape — Michael McCormack:

“— Welll I can’t comment because I don’t know…’

PAUL:

He concluded the doorstop by saying we need our strong relationships and link with China. So Deputy Prime Minister McCormick's sure has his eye firmly on our trade with China. Not surprising given that the Nationals are particularly close to Australia's resource sector.

ELIZABETH:

But tone deaf when human rights are obviously threatened in this case.

PAUL:

Yeah well as we've said before Elizabeth a buck is a buck and you don't let too much get in the way of making one.

[MUSIC STARTS]

[MUSIC ENDS]

[Advertisement]

ELIZABETH:

Elsewhere in the news:

On Thursday, Attorney General Christian Porter released a draft of the government's proposed religious discrimination laws following what he described as a "necessary and difficult balancing exercise." The draft bill would make it illegal to discriminate against an individual on the basis of religion but would not go as far as some religious leaders had hoped, in that it would not enshrine a broader right to freedom of religion.

In a nod to the circumstances surrounding Israel Folau's case against Rugby Australia, employers would not be able to restrict their staff from expressing religious beliefs outside of work, unless it could prove that doing so would materially impact their business.

The draft did not include mention of whether religious schools would maintain the right to expel students or dismiss staff on grounds of their sexuality. Porter will continue to consult MPs and community groups before legislation is introduced to Parliament, which is likely to happen in October.

It takes a team to make 7am. Those people are Emile Klein, Ruby Schwartz and Atticus Bastow. Erik Jensen is our editor. Our theme music is by Ned Beckley and Josh Hogan of Envelope Audio.

Please consider subscribing to the show through your favourite podcast app if you haven’t already. Or leave us a review if you listen on iTunes or on Stitcher. It’s a huge help to us.

This is 7am. I'm Elizabeth Kulas. See you next week.