John Wilson
Sydney, Australia

16 February 2023

Committee Secretary
Joint Standing Committee on Aboriginal and Torres Strait Islander Affairs
PO Box 6021
Parliament House
Canberra ACT 2600

Phone: +61 2 6277 4559
By email: JSCATSIA@aph.gov.au

RE: Inquiry into the application of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in Australia

Dear Sir/Madam,

This is a formal submission to the inquiry of the Joint Standing Committee on Aboriginal and Torres Strait Islander Affairs as per terms and references on the Parliament of Australia website below at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Aboriginal_and_Torres_Strait_Islander_Affairs/UNDRIP/Terms_of_Reference

Terms of Reference

The Joint Standing Committee on Aboriginal and Torres Strait Islander Affairs inquire and report into the following:

The application of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in Australia, with particular reference to:

My submission addresses each of the above points.

(1) Overview

In the spirit and requirements of UNDRIP Australia should make reforms in specific areas discussed below to better serve the interests of indigenous people both at home and through its interactions with indigenous people offshore.

Strengthening Australia’s support for and implementation of the principles of UNDRIP will require review, and likely amendment of security legislation which is excessively partial to the status quo; and secondly, oversight of Australian intelligence agencies should be strengthened to ensure UNDRIP principles are respected and complied with by the agencies – specifically, a standing royal commission into the Australian intelligence agencies with broad terms of reference that encompasses the Inspector General of Intelligence and Security (IGIS), ought to be implemented as recommended by Justice Hope which was a key recommendation of his royal commission into the intelligence agencies in the 1970s but never implemented.

Australian intentions to adopt and support UNDRIP have been and continue to be undermined by Australian intelligence agencies that operate within an outdated mindset and insular worldview with counterproductive results that negatively impact broader national security interests. Our agencies, most notably ASIS and ASIO prioritise economic interests and vague notions of protecting “relationships” often ignoring or working against Indigenous people’s rights.

Examples of our intelligence agency shortcomings include:

1. Australia’s covert bugging of the East Timor parliament by ASIS to gain financial advantage. Even in the widely publicised case of Witness K and Bernard Collaery’s exposure of ASIS’s egregious, illegal bugging of East Timor’s parliament and Australia’s subsequent fraudulent misappropriation of a significant portion of East Timor’s oil and gas revenues, Australian regulators, most notably IGIS, did nothing to remedy the matter.

2. Australian intelligence agencies have played a central role in the political and military alliance against West Papuans in subjugating Melanesian traditional owners to Indonesian rule, a matter that is deeply divisive within the wider region. Many of our island neighbours are Melanesian and identify closely with aspirations of West Papuan indigenous people for a fair plebiscite. The military annexation of West Papua was deemed illegal by many of our neighbours after a rigged plebiscite in 1969 that was conducted under Indonesian military coercion and an unrepresentative process that undermined the integrity of the vote, according to reports by UN observers. Adding insult to injury, West Papua was a staunch WWII ally of America and its annexation is widely viewed as a betrayal by American, UK, and Australian governments. Australia has provided funds and military hardware to Indonesia knowing it was highly probable these would be used in the oppression of Melanesian West Papuan indigenous people,

3. Australian agencies failed to protect, and prevent the destruction of, 46,000 year old caves at the Juukan Gorge in the Pilbara region of Western Australia in May 2020.

There are several things Australia could do to support democracy in our region that entail better governance of our intelligence agencies, such as:

1. Implement Magnitsky-style laws to sanction individuals, companies, agencies and government officials involved in egregious violations of UNDRIP, both domestically and internationally.

2. Implement a standing royal commission to oversight of the intelligence agencies as was a key recommendation of Justice Hope in his 1970s royal commission into the Australian intelligence agencies to create a comprehensive oversight system. Without this key mechanism, the public and parliament are left dependent on blind trust in powerful government agencies – which is the antithesis of democracy.

3. Mandate the “smell” test: Any intelligence agency operation in peacetime should pass the “smell” test – would it withstand media scrutiny, would it meet public acceptance, and could the agencies justify their conduct to a court.

4. Adopt an “all-of-government” approach to UNDRIP. In this regard, and often overlooked, review and update the modus operandi and goals of the intelligence agencies to reflect the wider, sometimes competing interests of a more complex, multicultural Australia and region. Vague wording about protecting relationships, financial and business interests should be abolished, and in their place wording that reflects the standards and paradigms we expect them to abide by, including support of UNDRIP. UNDRIP principles should be given equal priority to the other key priorities of our intelligence agencies.

5. The intelligence agencies have been given great power, and frequently implement covert policies contrary to national paradigms. They operate beyond the normal democratic checks and balances that contain the excesses of others with power, away from media and public scrutiny, out of sight to the judiciary, and indeed, much of their activities are beyond the knowledge of our parliamentarians. These traits are anathema to democracy.  Redesign Key Performance Indicators (KPI’s) of the intelligence agencies to reward conduct that follows and enhances democratic values and UNDRIP principles. Our agencies’ conduct currently undermines key UNDRIP objectives.

A brief summary of my personal background and experience dealing with Australian intelligence agencies and reason for making this submission is below.

(2) Personal background

After completing an MBA at Wharton business school in the USA I worked as a mining analyst for major British investment bank SG Warburg (now part of UBS) in New York on Wall Street in the mid-1990s. As part of my job, I followed Freeport McMoran, a large American mining company listed on the NYSE, and one of the companies in my portfolio of coverage. The company owns the large Grasberg copper and gold mine in West Papua, Indonesia and at the time was under investigation by the US State Department following eye witness allegations it was involved in the killing of indigenous protestors as well as other human rights abuses.

On 12 March 1996, I authored an investment analysis publication for work titled “Grasberg Closure Highlights Political Risks”. My report noted OPIC’s cancellation of Freeport-McMoRan’s Grasberg mine insurance policy, the heightened political risks resultant from Freeport-McMoRan’s intimate relationship with the Indonesian military, and investigation by the U.S. Department of State. My report was originally published in First Call and was soon thereafter additionally distributed to fund managers globally (attached as “Exhibit 1” in my Declaration). Shortly after I asked a question about the State Department’s interim findings to the CEO Jim Bob Moffett at an analyst briefing in the Freeport boardroom in New Orleans which.

Immediately after the analyst question time I was threatened in the boardroom alcove, apparently by a federal agent, and the next thing I knew I had the FBI (and an Australian intelligence agency) interfering with my life and career. The matters affecting the Grasberg mine, West Papua, Indonesia and Freeport were political in nature and of legitimate concern to global investors. Notwithstanding this, the FBI sought to “deplatform” and “punish” me for drawing attention to a sensitive matter. It interfered in my career, professional, social and family networks, attempted to entrap me in a failed drug sting, DUI and other offences.

Following publication of this report and question to the CEO, I was subjected to a multiyear harassment campaign seeking to falsely portray me as an environmental extremist. Part of this harassment and intimidation included death threats against me. Many of my harassers identified themselves to me as being affiliated with the FBI (and in Australia ASIO/ASIS). The agencies’ surveillance of, and interference with, me and my family since then has been completely intrusive and unreasonable. I have been blacklisted and harassed in retribution. It appears this is intended to intimidate and silence not only me, but more broadly, civil society.

I moved back to Australia in 1999 to escape the intrusive interference I was experiencing in the USA. Stemming from my work in the USA, and FBI retribution, Australian agencies are now party to this “payback”, and Australia’s oversight agencies are either wittingly or unwittingly complicit in this. I have not had accountability from any agency or oversight authority in Australia, I have heard no accusations against me, nor have I been able to test or challenge any “evidence” in person, to a standing royal commission or in a court of law with legal representation. As a result, Australian intelligence agencies are involved in political matters and operate at will without due constraints.

It has not been possible in Australia to make any meaningful progress seeking accountability through the established democratic oversight channels – media, legal, and oversight agencies, including IGIS.  A standing royal commission as envisaged by Justice Hope would strengthen the oversight regime adding openness, independence and judicial procedures of justice to what remains a closed and secretive system captive to the agencies. Journalists, editors and publishers, legislators’ staff, lawyers, etc – members of the key institutions in the oversight and protection of our democracy, are free to be recruited to work undercover by these agencies. When this occurs, conflict of interest corrupts our democratic institutions and covertly undermines the separation of powers, undermining governance. There is no requirement for the individuals recruited to disclose to the public, or their superiors, or anyone else (indeed they face harsh penalties if they do so) their association with an intelligence agency, nor if they receive financial payments or other incentives from them.

In addition to my own experiences of FBI harassment, at least seven other professionals who made disclosures in the mid-1990s related to Freeport McMoran, including academic and journalists, have described similar interference, including being threatened, blacklisted, and in other ways intimidated for their work. The experiences of these other professionals are detailed in Denise Leith’s The Politics of Power Freeport in Suharto’s Indonesia. The relevant excerpted pages are in my Declaration attached in the appendix to this submission.

(3) Freeport McMoran, Grasberg mine, West Papua, Indonesia

Freeport-McMoRan’s Grasberg mine has caused profound environmental devastation in the vicinity of the mine, and triggered large western backed, Indonesian military responses in the region against traditional landowners, during which time Australia contributed funding and military equipment to Indonesia.

The project area around the Grasberg mine has had a long history of violence following the deposit’s discovery in 1988. A massive expansion of Freeport’s land holding in the area was granted in 1994 rising from around 6 million acres to 9 million acres without requirement to compensate the traditional owners. Further, the concessions were granted without stringent environmental controls. The ensuing conflict over the years, starting in 1994, and including the 1994 Christmas Day massacre, resulted in the deaths of hundreds of indigenous protestors.

Forced relocations were undertaken by the military reportedly with Freeport’s material assistance, and the company, or a subsidiary, also directly funded the Indonesian military and certain Indonesian army officers. According to the New York Times (Jane Perlez and Raymond Bonner, December 27, 2005 Below a Mountain of Wealth, a River of Waste, The New York Times), the company has also paid for and provided material support to the Indonesian military and police, to the tune of millions of dollars a year, and offered material support to military operations in West Papua. The NYT also reports estimates that the military had killed 160 people in the area of the mine and surrounds between 1975 and 1997 alone.

According to a New York Times report, for many years Freeport-McMoRan maintained close financial ties with violently repressive Indonesian government and military officials to shield the Grasberg mine from indigenous, environmental, and human rights protesters, as well as to surveil protesters and their communications. From the outset, indigenous people in the area of the mine were not compensated for the loss of their land and were, in cases, forcibly removed and relocated. Freeport has been criticised for providing material support to the military, and funding including directly to military officers.

In 1996, rioting by indigenous protesters in Timika, Indonesia briefly forced the closure of the Grasberg mine. This reportedly resulted in even further brutality and repression by Indonesian military and police forces working to protect Freeport-McMoRan’s Grasberg mine. This also resulted in an emergency visit to Indonesia by Freeport-McMoRan CEO Jim Bob Moffett arriving in Timika 13 March 1996. The U.S. Department of State reportedly investigated Freeport-McMoRan for its involvement in violence against indigenous people. According to subsequently released classified 1995 State Department document pertaining to turmoil surrounding the Grasberg mine, Freeport-McMoRan provided Indonesian military intelligence with information pertaining to the persons Freeport-McMoRan believed were responsible for the riots.

(4) Who do the agencies target and on what issues?

Australia does not have a robust system of oversight of its intelligence agencies. There is no standing royal commission to review their activities, contrary to a key recommendation of the Hope Royal Commission into the Australian intelligence sector.

Almost anyone and any issue that challenges the “status quo” as determined in secret by the intelligence agencies. They can target, for example, opinion leaders that speak “off-message”, or people that expose corruption or release details of human rights, environmental, financial or social abuses of corporations and other entities: these people are being silenced and punished unjustly by the intelligence agencies – as revealed in case studies by Meredith Burgmann in her book discussed below.

Dirty Secrets: Our ASIO files : a book edited by Meredith Burgmann contains details of individuals recalling the contents of their ASIO files, released to the National Archives of Australia (NAA) after the then mandatory 30 year holding period. Burgmann is an academic and former parliamentarian; her book helps the public understand the culture of ASIO, and its methods of twisting, extending or ignoring its stated targeting priorities to pursue anyone who influences civil society or government policy.

The files reveal a number of common elements, all denied by ASIO, the Attorney General and IGIS: that ASIO systematically targets people who are not a threat to “national security” as ordinarily understood, or a threat to other objectives publicly prioritised by ASIO. Many of ASIO’s targets are simply good communicators, or “engineers of social progress” including women’s liberation activists, anti-Vietnam War, anti-apartheid, civil rights, pro-abortion, aboriginal rights, prison reform and gay rights; some of the many causes in civil society which enjoyed broad public support but which were not backed by government policy of the day.

The National Archives of Australia (NAA) provides specific civil society examples of the type of reasons that ASIO uses to justify surveillance and maintain files on Australians. The reasons are chillingly trivial in cases and include: “…membership or involvement in political association, participation in demonstrations, association with other persons under surveillance.”  Members of literary groups and writers are also mentioned. “The National Archives in Canberra holds ASIO files on several Australian literary groups and a large number of Australian writers.”

The picture that emerges from the accounts in Burgmann’s book, the NAA, and my own experience, is the intelligence agencies are in the service of protecting and maintaining the “status quo”, which by definition, implementation of UNDRIP principles may be in conflict with. As a result, indigenous Australians and “activists” supportive of UNDRIP and related causes are vulnerable, by this fact alone, to adverse ASIO/ASIS interference.

This discussion is relevant to the Inquiry, as security legislation and legislation concerning the oversight of the intelligence agencies has ramifications for the implementation and prioritisation of UNDRIP. 

The intelligence agencies operate under broad, vaguely worded powers with no meaningful external review of their day-to-day activities, priorities and methods. Targets are not informed of their targeting, even after 2 years, let alone 20 years, have no rights to know the “evidence” against them, let alone challenge it in court with legal representation and cross examination of witnesses. Most people targeted never even realise they have been interfered with. There is vast scope for agencies to abuse their powers and indeed, in the rare cases matters come before the courts, defence attorneys are scathing of the corrupt conduct and weak controls over the agencies. A royal commission would help ensure fair and reasonable access is granted to basic due process for justice in a system that currently lacks transparency and integrity.

Ian Barker, QC a prominent Australian barrister proclaimed his frustration with the abuses of ASIO, and by corollary ASIS, and the lack of credible oversight. He said:  

“Any defence lawyer having anything to do with a case involving ASIO will know that its agents habitually act outside their powers and routinely abuse them, always in secret. It is rare indeed for their conduct to be exposed.” (Ian Barker 28 December 2007, Letters to the Editor, Sydney Morning Herald).

He also stated to me in a 2011 telephone conference call – paraphrasing, “It is disgraceful that a country like Australia has agencies like ASIO and ASIS doing the sort of things they do”.

(5) Conclusion

There is much Australia could do to strengthen implementation of UNDRIP. The focus of my submission to assist achieve these ends is the reform of our intelligence agencies and oversight.

Without the key adjustment of the standing royal commission recommended by Justice Hope to help detect and stem corruption, realignment of intelligence agency goals and modus operandi to give high priority to UNDRIP principles, Australia’s future remains at unnecessary risk of intelligence agencies human rights abuses and tarnishing our country’s reputation.

Part of the solution to strengthening Australia’s regard for, and implementation of, UNDRIP lies in modification and modernisation of security legislation to ensure Australian security agencies serve to implement UNDRIP as one of their key priorities. At present, neither legislators nor the public are aware of the specific details of what these agencies do, or why, and for whose benefit.  The scope for agency abuse of diverse community interests and values is huge. To ensure compliance with public standards and values more needs to be known about what these agencies actually do – this objective requires augmenting existing oversight with an independent, standing royal commission.

Justice Hope recommended about 40 years’ ago that there be a standing royal commission into the Australian intelligence agencies that encompasses IGIS, as a means to keep IGIS and the intelligence agencies fully accountable, to make transparent the priorities they identify, the issues they target and most importantly, to expose their abuses, egregious or otherwise, including matters such as the bugging of East Timor’s parliament, the impact of Australian policy on traditional owners in West Papua, the failure to protect Juukan Gorge, WA heritage and cultural area, that specifically are covered by UNDRIP principles. Alarmingly, Justice Hope’s recommendation was resisted by the agencies and never implemented. As such, there remains a large gap in the oversight system. People with credible complaints about ASIO or ASIS, etc, including indigenous, social justice and environmental advocates, have no achievable way of having those claims investigated and verified, and this extends to violations of  UNDRIP principles. A standing royal commission could rectify this.

In summary, my submission contends that conduct of the Australian intelligence community, in particular ASIO at home and ASIS overseas, is frequently deplorable and disreputable in targeting Australians and those who speak out for legitimate interests against the agencies’ objectives, including those who advocate for indigenous interests. Legislation governing the activities of our intelligence agencies should be modified and modernised; and as Justice Hope recommended, a standing royal commission into the intelligence agencies should be implemented to enhance transparency and accountability. This would be of benefit to Australia’s implementation of UNDRIP.

Yours sincerely,

Mr. John Wilson

Appendix

1. Declaration of John Wilson dated 31 October 2022

[The below link is a slightly modified version of my submission to JACATSIA Australian Parliamentary Inquiry. At the Committee’s discretion, the submission was not accepted as a formal “submission” for public disclosure. It was, however, accepted as correspondence for private review by the Committee and staffers.]

A full copy of the submission is available for download here:

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