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 The Director General of ASIS Irvine could not have been actors in this affair. unaware of the case that led to the placing notorious “ASIS Sheraton Hotel” 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.
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.
Supplementary-Paper-2.docx