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Australia wins legal battle to suppress secret papers on East Timor 'for fear of upsetting Indonesia'
Sydney Morning Herald - April 3, 2014
Administrative Appeals Tribunal President Justice Duncan Kerr yesterday said that the National Archives was right to deny University of NSW Associate Professor Clinton Fernandes access to Australian diplomatic papers and intelligence on Indonesian military operations in East Timor from more than 32 years ago.
A former Australian military intelligence officer turned academic, Dr Fernandes has been engaged in a six-year bureaucratic and legal struggle to secure declassification of records relating to Indonesia's invasion and occupation of East Timor.
On advice from the Department of Foreign Affairs and Trade and Australia's peak intelligence agency, the Office of National Assessments, the National Archives denied Dr Fernandes access to parts of two Foreign Affairs and Trade files that contain reports about a major Indonesian military offensive across East Timor in late 1981 and early 1982.
The operation involved the Indonesian army using East Timorese civilians as human shields and ended with a massacre of hundreds of people.
Dr Fernandes applied to the Administrative Appeals Tribunal for a review of the Archive's decision that release of the diplomatic and intelligence papers would damage Australia's international relations, defence or national security.
However, in January, Attorney-General George Brandis issued a "public interest certificate" that prevented disclosure of the government's arguments for continuing secrecy and excluded Dr Fernandes and his legal representative from hearing evidence presented to the Tribunal by the government.
In a ruling late Wednesday that all but two short sections of text must remain secret, Justice Kerr expressed regret that he was in a position "where I now have to express conclusions which I am unable to explain" in his open decision.
But Justice Kerr did refer to evidence given by the Department of Foreign Affairs and Trade that in May 2013 the US government had advised that "it wanted the Australian government to continue to restrict access to... four documents" that had "ongoing sensitivities".
Office of National Assessments deputy director-general Jim Hagan further testified that release of information would "damage ONA's relationship with international partner agencies" and that "could in turn damage relations between international partners and the Australian intelligence community and between the foreign and Australian governments more generally".
Justice Kerr further emphasised that Mr Hagan "stressed the particular sensitivity about the relationship currently between Australia and Indonesia and pointed out... that there are presently some significant tensions between the governments of Australia and Indonesia".
Dr Hagan argued "present circumstances have to be taken into account in relation to potential damage to Australia's international relations and security interests".
In the course of the limited open proceedings in the case, Justice Kerr observed that while embarrassment, either to Australia or Indonesia, was not in itself sufficient to damage international relations, "embarrassment could rise to a point where it affects the relationship to a high degree".
Dr Fernandes told Fairfax Media he was determined to continue his efforts to secure the release of secret records relating to Indonesia's occupation of East Timor.
"We shouldn't be covering up major atrocities against the East Timorese population, and their nuns and priests more than 30 years after these events," he said. "I'll keep going with more court challenges, win or lose. Fifteen years in the Australian Army trained me to be resilient. The worm will turn."
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