Access to National Archives: The Kim McGrath case

23 July 2020

Since 2013, researcher and author Kim McGrath* has sought direct access to Australian government archives on 1970s Australia-Indonesia seabed boundary negotiations over the Timor Sea. While many files are now available for study, the National Archives refused access to a significant volume of material in some of those files. Australia’s Administrative Appeals Tribunal recently confirmed the National Archives’ decisions to refuse access to the redacted materials.

We explore here the nature of the files sought by McGrath, the reasons why access was refused to some material and why we feel the Tribunal process was unfair.

Heavily redacted pages from a 1979 file on Australia-Indonesia Timor seabed boundary negotiations. [Source: NAA A1828 1733/3/2 Part 8]

The National Archives of Australia (NAA) currently holds over 2,000 folders of Australian Government records about Timor-Leste for the years 1974-1999. (1)  The many thousands of individual documents in the folders are an irreplaceable research record of historical Australian government policy and actions on Timor. Some of the documents also provide some unique insights into Indonesian government policies, events on the ground in Timor itself, and the work of solidarity activists in Australia.

Roughly 1,000 folders are immediately available to researchers. Half of these folders are fully open to researchers but the other half have parts of them kept secret. (2)

Most of these folders can only be seen by visiting NAA in Canberra. About 15% of the folders can be viewed online.

To see the digitised folders, click on the ‘digital item’ icon in these two lists of ‘Timor’ items at NAA:
(i) Fully ‘Open’ folders
(ii) ‘Open with exception’ folders (partly-secret or redacted text).

Researchers can apply to Australia’s Administrative Appeals Tribunal (AAT) for access to the secret/redacted texts. However, as Kim McGrath found in her appeal, the odds are stacked against success.

Timor Gap folders
Australian government records are fundamental to Kim McGrath’s doctoral-candidate research on Indonesia-Australia seabed boundary negotiations in the 1970s. These Australian records provide a deep insight into Australia’s and Indonesia’s past and present policies and actions on the Timor Gap.

See this list for an indication of the number and range of Timor seabed-related folders held by NAA.

While McGrath was able to access some folders with no significant restrictions, NAA decided that another 24 folders could only be accessed after extensive redactions. We have created a modified version of McGrath’s list of files she submitted to the AAT to challenge NAA’s redactions. The list includes McGrath’s summary of the important content of each folder and the details of NAA’s restricted-access decisions.

Only two of the 24 folders have been digitised and made available through NAA’s online database:
(i) January 1978 cabinet papers on Australia’s de facto recognition of the Indonesian takeover (partly redacted);
(ii) January 1979 Australia-Indonesia Timor Gap talks (heavily redacted).

A long road to the AAT decision
Between July 2013 and June 2014 Kim McGrath applied to NAA for access to the folders. NAA failed to make an access decision for most of the files within the mandatory 90-day period, effectively denying her access to the folders. McGrath then applied to the AAT in March and October 2014 for a review of NAA’s (non-)decisions.

The formal Tribunal hearing was not held until May 2018, almost five years after her first application to the AAT. In the interim, NAA completed its examination of the folders and had largely finalised its access decisions by September 2016.

McGrath then had to wait a further two years after the 2018 Tribunal hearing before the AAT judgement was delivered on 9 June 2020.

The Tribunal decision
The Tribunal endorsed NAA’s redactions of the folders. The Tribunal accepted NAA’s opinion that some material could not be seen because it “could reasonably be expected to cause damage” to Australia’s security or international relations. (3)

McGrath’s arguments included that some of the material could be released because the content was no longer sensitive or because similar material in other NAA folders had already been released.

NAA’s key witness was Greg French, a one-time legal expert within the Department of Foreign Affairs & Trade (DFAT) and now Australia’s Ambassador to Italy. French examined the 24 folders and concluded that release of the redacted material “could damage” Australia’s relations with Timor-Leste and “was very likely to damage” Australia’s relations with Indonesia.

French explained his reasons for this conclusion – but only in a closed session of the Tribunal hearing. Neither Kim McGrath nor her lawyers were permitted to hear French’s reasoning nor cross-examine him or other NAA witnesses in the closed session.

CHART Comment
The time taken for the AAT to consider Kim McGrath’s challenge to NAA’s access decisions is already a clear injustice. More generally, such a delay would discourage others from taking the same course of action to challenge NAA’s access decisions.

While the NAA has to defend itself at the AAT, it is clear that NAA actually depends on DFAT to decide in the first place what should be redacted from DFAT documents now in the National Archive. No surprise, then, that an expert witness who is himself a DFAT officer would affirm and support DFAT opinion given to NAA.

The lack of independence implied in such a witness testimony is bad enough. The inability of an applicant like Kim McGrath to challenge witness testimony given in a closed court adds to the unfairness of the whole process.

Relevance for Timor-Leste
The Australian national archives system has much to recommend it. But the access appeals procedures are far from perfect, as the Kim McGrath case demonstrates. Perhaps Timor-Leste can devise a system which shows a better way.

Timor-Leste has an ever-growing archival heritage. Some 1974-1999 materials are still held privately but increasing volumes are kept in at least four archival institutions. Other materials can be found outside Timor.

Missing from Timor-Leste’s archival world are formal laws to protect but also encourage access to that archival heritage. Various draft laws have existed since at least 2003 but none have made it into formal Law.

Hopefully Timor-Leste’s civil society will have a chance to contribute to the drafting of national laws on archives before they are legislated. And hopefully those laws will make clear what can and cannot be seen by Timor’s citizens, the reasons for any restrictions and a fair and efficient mechanism for challenging access decisions that seem questionable.

 


NOTES

* Kim McGrath is a long-time researcher/analyst, consultant and advisor on governance, policy development and other matters to governments, private companies, universities and not-for-profits. Since 2009 she has researched the 1970s Australia-Indonesia seabed boundary negotiations, out of which arose her popular 2017 book, Crossing the Line: Australia’s Secret History in the Timor Sea. Her doctoral studies are entitled Alternative histories – Australia’s Timor Sea energy diplomacy in the 1960s and 1970s. She recently wrote in the Foreign Affairs journal on the 2004 ASIS spying scandal in Timor and its ongoing aftermath. See an edited extract in the 12 July 2020 Guardian newspaper.

Many thanks to Kim McGrath for sharing with CHART an account of her NAA/AAT experience and some associated documents.

(1)  Almost 2700 records can be found in NAA’s public online database using the simple search term “timor’ in the date range 1974-1999. A further search, excluding photographs and audio-visual formats, shows there are 2056 ‘paper file & document’ records.

(2) Of the 2056 folders, 519 are ‘Open’; 479 are ‘Open with exception’ (ie accessible but with secret pages removed and/or redacted text); 82 are ‘Closed’ (not available for access). Another 976 folders are classified as ‘Not yet examined’ (no researcher has yet asked for access).

(3) This is the most common reason for redactions in hundreds of Timor folders at NAA. Documents are exempt from access if they match any one of a range of conditions described in the Australia’s archives law.

Further information

Media items on the Tribunal decision: The Guardian.

Full text of the AAT Decision McGrath & National Archives of Australia.

CHART articles on Clinton Fernandes’ successful 2011 AAT appeal and his less successful 2014 AAT appeal.


Remembering 1999: ACFOA Human Rights office archives

30 August 2019

It is now twenty years since the historic 30 August 1999 United Nations-supervised ‘Popular Consultation’. Nearly 80% of East Timorese voted to reject Indonesian incorporation and confirmed their long-fought-for desire for independence.

The year was tumultuous in many ways, not least through the depredations of Indonesian military-backed militias. These groups intimidated and murdered East Timorese with impunity before and after the vote and worked with the military after the vote to force a mass displacement of people and destroy most of the territory’s building infrastructure.

There are large volumes of documentation outside Timor which record solidarity group, NGO and government observations and actions about Timor in this dramatic last year of the occupation. We present here a few samples from the archives of a key Australian NGO.

The document sample comes from the archive of the Australian Council for Overseas Aid Human Rights office (ACFOAHR), covering the whole of 1999. For contextual information, we have also provided a link to a full digital copy of the source folder for each of the selected documents.

Click here to view the ACFOAHR 1999 Selections.

The selected documents and their associated folders provide a small window through which we can glimpse the richness of this collection. These records do not necessarily contain many items of great historical importance. They do, however, offer invaluable insight into the interests and work of this historically important office in its advocacy in defense of the East Timorese.

About ACFOAHR
The Australian Council for Overseas Aid (ACFOA) was the peak coordinating body for mainstream Australian humanitarian aid and development organisations. It became became prominent locally and internationally in advocacy for Timor through the occupation years from 1975.

Largely as a result of work of Pat Walsh in the name of ACFOA from the late 1970s, the Human Rights office was formally established in 1985 and closed in 2000. While research and advocacy on other matters like Burma/Myanmar, West Papua and the rights of indigenous Australians, East Timor remained a key element in the office during its life.

ACFOAHR Archives
The ACFOAHR archive is one of the largest collections managed by CHART since the early 2000s. The collection is internationally important. It holds a rich documentary record of events inside Timor since 1975, evidence of Australian and international government and non-government advocacy for and against the East Timorese as well as the prodigious record of direct advocacy on Timor by Pat Walsh and his associates in the office.

For a guide to the contents of this important collection, see CHART’s preliminary box list.

CHART has digitised the bulk of this collection – copies of which will be given to East Timorese archival institutions for current and future East Timorese and other researchers.

———

 

 


Gordon McIntosh, 1925-2019

11 March 2019

A highly-principled and tenacious supporter of East Timorese self-determination and independence since 1975, former Australian Senator Gordon McIntosh sadly passed away on Sunday, 10 March 2019.

We devote this page to the memory of his unique role in the history of modern Timor-Leste – particularly during the 1974-1999 years of decolonisation, occupation and liberation.

More will be added to this page over the coming days. Links to material about Gordon McIntosh or comments about his Timor role are warmly welcomed.

Gordon McIntosh, visited by young East Timorese in Perth, January 2016

A brief Timor biography

Gordon McIntosh began his working life at aged 15 as an apprentice metal worker in the Glasgow shipyards. Migrating from Scotland with his wife Betty in 1950, he quickly found skilled metal work in Perth, Western Australia, where he was also very active in the union movement.

He began serving on the State Executive of the Australian Labor Party as early as 1952. He was elected a Labor Party Senator in the Australian Parliament in 1974 and served in that role until 1987.

Timor roles

During those years in the Senate he played a major part in keeping the Timor issue alive in the Parliament, despite the actions and policies of successive Australian Governments (Labor and Liberal) to oppose East Timorese self-determination and independence.

In addition to the many parliamentary questions asked by Senator McIntosh, he is best known as Chair of the 1982-83 Senate Inquiry about East Timor and his membership of the Australian Parliamentary Delegation to Indonesia and East Timor in 1983.

His dissent from the formal report of the Delegation was widely reported in Australia and welcomed by the Resistance in Timor. His dissent played a key part in nullifying the Hawke Labor Government’s attempts to over-ride Labor policy supporting East Timorese self-determination.

Outside parliament he addressed many public meetings in Australia, New Zealand and New York. He petitioned the United Nations Decolonisation Committee in 1982 and joined others on the Lusitania Express peace ship mission to Timor in 1992.

In 2014, Gordon McIntosh was awarded the Order of Timor-Leste for his contribution to the East Timorese struggle for independence. In 2016 he visited Timor-Leste as a guest of the State. During this visit he met for the first time the resistance veterans who had applauded his support in the 1980s.

Up until a few months before his death at age 93, Gordon McIntosh retained a vivid recall of his Timor experiences and maintained an active interest in the emerging state of Timor-Leste. With his passing, the East Timorese community and its overseas support network lost one of its staunchest friends.


Various items on Gordon McIntosh’s Timor record

Australian Parliamentary Biography
A formal biography of Gordon McIntosh’s early life and parliamentary record.

Order of Timor-Leste
Notes in support of Gordon McIntosh’s 2014 Ordem de Timor-Leste award.

McIntosh / Ulun Toos
Timor Archives backgrounder to a ‘lost’ 1988 Xanana Gusmao letter to McIntosh and McIntosh’s 2015 reply.

Gordon McIntosh Timor Archives (1)
A preliminary guide to the Timor papers of Gordon McIntosh

Gordon McIntosh Timor Archives (2)
An online selection of digital copies of McIntosh’s Timor papers.

Deceit, dissent and the verdict of history
Clinton Fernandes’ paper on the context and aims of the 1983 Parliamentary delegation to Timor and the significance of McIntosh’s dissent from the official delegation Report.

More to come…….


Centro Nasional Chega! director visits CHART

8 February 2019

Hugo Fernandes, the executive director of Timor-Leste’s Centro Nasional Chega! (CNC), visited the CHART Melbourne office in late January 2019. His visit provided more insight into the work of the CNC and marked a deepening of our relationship with this new Timorese institution.

Hugo Fernandes (third from right) with CHART staff and Board members, Melbourne. 29 January 2019

Centro Nasional Chega! is the successor institution to Timor-Leste’s 2002-2005 Commission for Reception, Truth & Reconciliation – more generally known by its Portuguese-language acronym, CAVR*. CNC’s mission is, broadly, to promote the implementation of recommendations of Chega!, CAVR’s monumental report..

CNC’s work focus will include the preservation of memory, the promotion of human rights through education and training and solidarity with the most vulnerable survivors of human rights violations in the 1974-1999 period.

CNC was established by government decree law in late 2016 and commenced operations in July 2017. CNC also succeeds CAVR by being based at the former Comarca prison in Balide, Dili.

As CNC’s inaugural director, Hugo Fernandes visited Darwin, Sydney, Melbourne and Canberra between January 23 and February 3, 2019, under the Australian Department of Foreign Affairs & Trade (DFAT) special visitors program.** With a packed schedule, he visited a broad range of cultural and advocacy organisations and institutions related to his CNC work and other responsibilities in Timor-Leste

CHART and CNC

CNC’s responsibility to preserve and provide access to the unique CAVR archive, to expand its information resources and create a dynamic centre for research and learning is of particular interest and relevance to CHART.

In September 2017, CHART and CNC signed a memorandum of understanding in which CHART agreed to provide practical and professional advice to CNC on archival matters. In October/November 2017, CHART’s John Waddingham and Cecily Gilbert conducted an onsite assessment of the CNC archive and library, making a number of recommendations to develop both functions.

Inspecting selections from CHART-held Timor archives.

Hugo Fernandes reported to CHART members on the ongoing value to CNC of the 2017 assessment recommendations.

He also outlined a range of recent CNC memorialisation activities, including:

  • a permanent photographic exhibition of historic events at the main government building,
  • a published guide to historic sites of human rights violations in Dili, and
  • a collection of writings by Timor-Leste’s early nationalist leader and first prime minister, Nicolau Lobato.

Mr Fernandes inspected a small exhibition of archival materials from CHART-held collections, and participated in discussions about CHART operations in Australia, our knowledge of Australian-held collections about Timor and our document digitisation program.

CHART and CNC have agreed to revise the 2017 MoU in the near future. It is expected to include transfers of digital copies of Australian-held archives and ongoing support for CNC’s archival development. We very much look forward to enhancing the relationship.


NOTES

*CAVR: Comissão de Acolhimento, Verdade e Reconciliação de Timor-Leste

** Mr Fernandes was accompanied by the First Secretary (Political) of the Australian Embassy in Dili, Lisa Clutterham.

Further Information:

Follow day-to-day Centro Chega activities on CNC’s Tetum-language FaceBook page.

CNC’s multi-language official website is in early development.

For an in-depth background to the establishment of Centro Nasional Chega!, see Pat Walsh’s August 2017 paper, Growing Flowers in a Prison. Pat Walsh was a key advisor to CAVR and the post-CAVR Secretariat as well as a member of the Working Group which planned the creation of CNC and a member of CNC’s international advisory group. Pat is a co-founder and current Board member of CHART.

See original Portuguese-language text of the Timor-Leste decree law establishing CNC, along with an unofficial English translation (courtesy of Luis Pinto, Portugal).

Photographs: Thanks to Lisa Clutterham / DFAT.

 

 


Penny Tweedie Photographs, 1975

31 July 2018

Penny Tweedie’s photographs of post-civil-war East Timor are among the best-recognised images of that dramatic period in Timor-Leste’s modern history. The National Library of Australia now holds the original Tweedie photograph collection. We present here a guide to the full set of Tweedie’s Timor images from September 1975.

A small sample of Penny Tweedie Timor images from 1975.

Penny Tweedie was among the first group of journalists and photographers to go to East Timor after the short civil war of August/September 1975.

Prior to this she recorded in Darwin the arrival from Dili of a group of refugees on the ship, Macdili. In Timor she captured images of the Fretilin leadership and its newly formed Falintil armed forces in Dili and on patrol outside Dili, going as far west as Balibo.

Tweedie photographed ordinary East Timorese recovering from the effects of the war, including receiving humanitarian aid and medical attention. She also took many photographs of prisoners held by Fretilin, mostly UDT* followers but also an Indonesian soldier captured on the East Timor side of the border.

Important to Timor-Leste’s archival record
Penny Tweedie’s images have long been recognised by East Timorese as a key record-set in the new nation’s history. Many of her images appear repeatedly on Timorese history and political websites and on social media – though usually without permission or attribution.

More formally, Timor-Leste’s 2002-2005 truth and reconciliation commission, CAVR*, purchased a set of prints of key images which today can be seen displayed at the successor institution, Centro Nasional Chega! It is also known that during his period as Timor-Leste President, Jose Ramos-Horta was negotiating with Penny Tweedie to acquire a fuller set of her images for Timor-Leste archival purposes.

CHART arranged with Tweedie in 2009/10 to put online a full set of her 1975 images as a guide to the collection for researchers and Timor-Leste archival institutions. Sadly her unexpected death in early 2011 meant the project didn’t proceed.

Tweedie at the National Library of Australia
Having unsuccessfully sought over some years to determine the fate of Tweedie’s collection, we were delighted to learn recently that her son Ben had donated her lifetime’s photographic record to the National Library of Australia in 2013.

The collection is a large and complex mix of original film negatives, contact and full-size prints, transparencies, notebooks and correspondence. Timor is a tiny fragment of the whole collection; Tweedie covered many conflict situations in other countries and is particularly well-known for her striking images of indigenous Australians.

See the National Library’s catalogue entry and collection list for more details.

See also CHART’s extract from the NLA’s collection list to point directly to the disparate Timor elements in the Tweedie collection.

Click image to view visual guide to collection

 

Visual guide to Penny Tweedie Timor images
CHART has prepared a visual guide to all Tweedie images from August/September 1975.

With the permission of Ben Tweedie, who inherited legal copyright ownership of the images, we have created low-resolution copies of Tweedie’s contact prints* of all her 1975 film negatives. We have supplemented the images with very brief descriptions of the content of each contact print.

Our purpose in doing this is to inform all East Timor history researchers and Timor-Leste archival institutions of the range of Tweedie’s Timor images and her particular contribution to the historical record.

Note on access and use restrictions
These images may not be reproduced elsewhere without prior permission. Requests for higher resolution copies of any of the images for any purpose must first be directed to the National Library of Australia.*


*Notes:

UDT: União Democrática Timorense / Timorese Democratic Union.

CAVR: Comissão de Acolhimento, Verdade e Reconciliação / Commission for Reception, Truth and Reconciliation.

Contact prints: These are direct, original size positive copies of the original film negatives. They were used in the pre-digital-camera era to identify and select images for reproduction. In the case of the Tweedie Timor items, the negatives were standard 35×24 mm black and white film.

Contacting National Library of Australia: See links from NLA’s catalogue entry for Tweedie collection.