In 2012 NAA had examined and released the folders to Fernandes (and to general public access), but denied access to 140 of a total of some 600 pages. These pages were excluded on the grounds that, if public, they could cause damage to Australia’s security, defence or international relations or that they were provided in confidence by another government (see details in Section 33 (1)(a) & (b) of the Archives Act 1983 .
Fernandes sought from NAA a review of that 2012 decision but with little result – so he followed standard procedure by then appealing to the AAT for an independent judgement on access to the excluded pages.
Public and closed hearings on January 30 and February 3 this year finally resulted in the AAT’s written decision of April 2. The decision (see full text) kept all ‘exempt’ material secret except for one line on one page and one paragraph on another page.
The folders
The two folders are part of sequence of folders titled ‘Portuguese Timor – Political – General’. This folder sequence, which dates back to 1946, was created and maintained by DFAT in Canberra.
The two folders in question, ‘parts’ 20 and 21, cover the dates 05 August 1981 to 11 January 1982. Clinton Fernandes sought access to these folders because they cover the period of a late-1981 Indonesian military operation known as Operasi Keamanan.*
Many of the public documents in these two folders do shed some light on what Australian officials did learn about the 1981 military operation. The material judged to be not secret can be viewed online through NAA – see Part 20 & Part 21.
We can only guess how much more information is in the still-secret pages of the folders – at least some of which came from the USA government or Australia’s intelligence coordinating body, the Office of National Assessments (ONA).
Government barrier to fair process
Fernandes’ appeal to the AAT was made more difficult by an action of the Australian government. In January, Attorney-General George Brandis issued a so-called ‘public interest certificate’ which required secrecy for official written evidence and verbal testimony to the AAT. The AAT President hearing the case acknowledged the disadvantage to Fernandes – the certificate meant his representative could neither see nor cross-examine the evidence put to the Tribunal.
A further consequence of the certificate was that the reasoning behind the Tribunal’s final decisions were also to be kept secret – leaving Fernandes with little grounds to challenge the decisions.
The decision – key points
Much of the text of the formal AAT decision is details on the procedures and legal context of the decision-making process. The substantial elements of the decision were:
1. With the exception of ten pages (‘folios’), the AAT affirmed the original NAA decision to deny access to the large number of ‘exempt’ pages. (Decision paragraph 62)
2. After further evidence from the Inspector-General of Intelligence & Security (IGIS) on these ten pages, the AAT decided that only parts of two of the pages could be released (paras. 62-64).**
Why the continued secrecy?
The AAT decision text implies that documents cannot be exempted from access on the grounds of “mere embarrassment” or exposure of Australia or Indonesia to public discussion and criticism (see para 34).
We know some documents from the USA remain secret because the US has asked Australia to keep them so. That is the law (Archives Act 33(1)(b) – so that decision is not surprising. But we do not know why the US wants the material kept secret.
All but a fragment of the documents remain secret because the Tribunal was persuaded by government claims their release will damage some or all of Australia’s defence, security or international relations. But the ways in which specific documents might cause such damage is not revealed.
Only minor clues to Australian government thinking on this can be found in the decision text.
Public evidence from ONA claimed disclosure of its material would be seen by other (hostile ?) parties or could damage relationships with ‘international partner agencies’ which, in turn could damage the broader security/defence relationships (paras 55-56). This is the standard general case made against release of any intelligence agency material and is not a revelation.
The same ONA official also referred to current tensions between Australia and Indonesia as a factor – implying that anything which might exacerbate the tensions was against Australia’s interests (para 57). Again, these are standard arguments which have been asserted by successive Australian administrations for decades.
Comment
We can only speculate on the specific reasons for the continued need to keep secret 30-year-old archives about Timor. Readers are invited to add their own thoughts by way of ‘Comments’.
The most likely reasons are to do with developing and maintaining Australia-US-Indonesia security and intelligence relationships – but beyond that, who knows? Another possibility is that some of the exempt information reveals high quality information about Indonesian military activities in 1981 and/or points the finger at the role of particular Indonesian military individuals still in service or public life.
Whatever the reasons, the Australian government and its agencies are strongly protecting some information from public access. So concerned with continuing the secrecy, the Australian government has flagged it is considering an appeal to the Federal Court against the AAT decision to release those tiny fragments on two pages. (See: Paragraph 6 part 4 of this subsequent April 8 decision of the AAT).
One partial solution to this overall problem may lie with Indonesian and US citizens pressing their own governments to release their still-secret official records on East Timor.
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* The operation was notable for its use of a ‘fence of legs’ (pagar betis) tactic in which large numbers of Timorese civilians were conscripted to assist Indonesia forces to sweep through the territory to capture the Fretilin-led resistance. There were fears at the time that this forced conscription could lead to serious food shortages in rural Timor. This operation also resulted in thousands of East Timorese being incarcerated on Atauro Island.** Parts to be released: The first line of the hand-written text on Part 21, folio 130 and the first paragraph of Part 21, folio 133.
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