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Australia's relations with Indonesia at stake over secret East Timor papers
The Guardian (Australia) - January 30, 2014
The fallout from Guardian Australia's revelations about Australia's attempts to spy on the Indonesia leadership has cast a shadow over attempts by University of NSW academic Clinton Fernandes to secure the release of government documents relating to Indonesia's treatment of East Timorese people between 1981 and 1982.
Administrative Appeals Tribunal president Justice Kerr told a hearing in Canberra this week that one of the reasons for keeping the documents secret was their potential to affect the current exchange of intelligence with Indonesia.
The National Archives wants to keep the files secret on the advice of the foreign affairs department and gave evidence to the tribunal in closed session.
Justice Kerr told Fernandes that it had been argued "the material may affect foreign relationships between Australia and Indonesia against a background that all parties would accept as presently less settled than it has been in some recent time" – a reference to the diplomatic freeze between Canberra and Jakarta since the Guardian story was published.
Fernandes, a former military analyst, was told the documents could "reveal information about Australia's intelligence sources, methods, operations and capabilities" according to Fairfax.
However, Justice Kerr, confirmed there was nothing in the documents related to defence signal intercepts (DSD) and, consequently, no argument was made that Australia's intelligence methods would be compromised by releasing the documents.
The documents relate to the "fence of legs" – a military operation conducted by Indonesian forces in East Timor resulting in the deaths of thousands of East Timorese civilians.
Dr Fernandes has argued that government documents from the period reveal a "pattern of concealment" about what was happening in East Timor, about which there had been "bipartisan consensus".
His representative argued before the tribunal this week that he "suspects" the documents will show "the Australian government had knowledge of these atrocities".
Jim Hagan, deputy director-general of the Office of National Assessments, appearing for the National Archives, said foreign nations communicating with Australia must feel confident they can do so confidentially.
Referring to the release of intelligence information by Edward Snowden, Mr Hagan warned of "other parties" drawing conclusions "if confidentiality was breached in another relationship". Following Hagan's remarks, the tribunal heard from the National Archives in a closed session.
Last week, attorney-general George Brandis issued a certificate of public interest to prevent the release of the documents. His predecessor Nicola Roxon issued similar orders. The certificates prevent Dr Fernandes from accessing information, including affidavits, about the reasons for the continued secrecy of the documents.
A spokesperson for Brandis said making public the reasons for confidentiality of the documents would defy logic: "disclosure of the affidavits... would prejudice the security, defence or international relations of Australia."
"The certificates do not prevent the AAT from reviewing the merits of archives' decisions and the AAT will be able to undertake full merits review," he said.
In an affidavit sworn in July last year, the Department of Foreign Affairs and Trade (Dfat) cited the intelligence sharing agreement with the United States as a reason for the continued classification of the documents.
A Senate Estimates hearing in May 2012 had previously heard the National Archives, on the basis of advice from the Department of Foreign Affairs, had determined not to release the documents because of their security-sensitive nature. The hearing is expected to finish on Friday.
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