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Brandis moves to protect what Australia knew of Indonesian war crimes
Sydney Morning Herald - January 27, 2014
Senator Brandis has issued a public interest certificate that will prevent Associate Professor Clinton Fernandes of the University of NSW from being present at the Administrative Appeals Tribunal on Tuesday.
It is the day the government will argue that Justice Duncan Kerr should reject Dr Fernandes' application for access to Australian diplomatic papers and intelligence on Indonesian military operations in East Timor more than 32 years ago.
Consequently, Dr Fernandes will be unable to read, hear or directly challenge the government's arguments for continuing secrecy.
In the latest round in a six-year bureaucratic and legal struggle to secure declassification of records relating to Indonesia's invasion and occupation of East Timor, Dr Fernandes is seeking full access to two Department of Foreign Affairs and Trade files that contain reports about a major military offensive across the island in late 1981 and early 1982.
Known as the "fence of legs", the Indonesian military operation involved more than 60,000 conscripted East Timorese civilians being forced to form human chains that moved across large areas of land with the military following behind them to flush out pro-independence guerillas from their hiding places.
The operation ended with a massacre of several hundred East Timorese civilians. The use of civilians as human shields is also a war crime.
The documents sought by Dr Fernandes include records of discussions between Australian diplomats in Jakarta and a senior officer of Indonesia's state intelligence co-ordination agency – then known as Bakin – as well as Australian diplomatic cables and intelligence reports, and assessments by Australia's intelligence agency the Office of National Assessments (ONA).
The Defence Department has previously acknowledged that the Defence Signals Directorate, now the Australian Signals Directorate, closely monitored radio communications of the Indonesian military in East Timor.
However, the National Archives of Australia has argued that release of some information sought by Dr Fernandes would be contrary to Australia's agreements with the United States for the protection of classified information.
The National Archives also says disclosure of other documents would "reveal information about Australia's intelligence sources, methods, operations and capabilities, including the nature and extent of the intelligence Australia collects from foreign countries".
Last Thursday Senator Brandis certified that disclosure of a confidential affidavit by ONA deputy director-general Jim Hagan and any related evidence presented to the Administrative Appeals Tribunal would be contrary to the public interest because it would "prejudice the security, defence or international relations of Australia".
In a covering letter to Dr Fernandes, Senator Brandis acknowledged that "where a certificate is issued it presents certain challenges to a party that is not allowed access to the certified information".
Dr Fernandes said the Attorney-General "should have provided a better explanation for this unnecessary secrecy, which serves only to prevent the public's understanding of Australia's international relations. After 32 years the only people who have anything to fear are officials who knew of major atrocities and covered them up."
Former prime minister Malcolm Fraser has told Fairfax Media that he would like to see the declassification of all the records of his government that relate to East Timor.
He wrote to the Secretary of the Department of Prime Minister and Cabinet, Ian Watt, late last year but was told the issue was a matter for the director-general of the National Archives, David Fricker. Mr Fricker is a former deputy director-general of the Australian Security Intelligence Organisation. Justice Kerr will begin hearing the matter in Canberra on Tuesday.
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