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.


A Voz de Timor online

17 June 2019

The National Library of Australia has added to its marvellous Trove facility some text-searchable issues of the Portuguese Timor-era  newspaper, A Voz de Timor. We briefly introduce this important new online resource for Timor-Leste historical research.

Portuguese Timor’s last general newspaper of record, A Voz de Timor (1959-1975), is an irreplaceable documentary resource. While ceasing publication at the outbreak of the 1975 ‘civil war’ in Timor, the journal published materials which may not have otherwise survived in any form after the Indonesian invasion in December.

Coverage and contents
This initial upload to Trove includes a few issues from 1973, almost all issues from 1974 and a few from February and March 1975. They provide a valuable record of developments in Portugal and Timor after the April 1974 ‘Carnation Revolution’ set Timor-Leste on course for its dramatic road to independence.

Page One News: 26 April 1974

For example, A Voz de Timor published early/foundation statements from the newly-formed East Timorese political organisations – UDT, ASDT (later Fretilin) and Apodeti.

But the journal is not only about politics. The National Library’s Anya Dettman points to “a vibrant snapshot of everyday life at the time….. advertisements from companies trading there, airline schedules, radio programs, movie screenings, local sports match results, social news and events, and Tetum language features. There are even early poems from some young man called Jose Alexandre Gusmao …”*

Online access options
Ways to access this resource include:

Browse all issues: Click on the ‘1970’ link in the ‘Coverage Graph’

Browse all articles: These can be sorted by earliest or latest date of publication.

Simple Search: Use the search box in the ‘Browse all articles’ screen. See Trove’s help page for tips and tricks with simple searching

Advanced Search: Provides more control over search terms and dates than a simple search. Requires user to restrict the search to the journal title under ‘Places and Titles / International’ section (click on ‘Show Titles’).

Trove also allows users to download individual articles as text, jpg or pdf files, as well as single pages or whole issues in pdf format. See menu icons at left of Trove screen.

End-user text correcting
An outstanding feature of the Trove newspaper resource is that it allows end-users to correct computer-created text errors and to add subject headings or ‘tags’ to articles. See the ‘Fix this text’ button in the left-hand pane of the Trove screen. These activities assist other users to conduct more accurate searches and to find materials of research interest.

The National Library is encouraging East Timorese and other A Voz de Timor readers to contribute text corrections to improve this already very valuable resource. We at CHART hope they do.


* See full A Voz de Timor announcement by Anya Dettman, Trove Digitisation Outreach Officer at the NLA.

Note: CHART was very pleased to play a minor role in contributing to this online resource. Early 1975 issues of A Voz were discovered during CHART work to arrange and describe Jim Dunn’s Timor papers. The issues were loaned by Jim Dunn through CHART to the National Library for inclusion in the Trove digitisation project.

CHART has high-resolution digital copies of the Jim Dunn-held issues of A Voz de Timor. These were created through a special project conducted by the University of Melbourne’s Student Conservators for Timor-Leste. The top graphic in this article was created from the SCTL scans.


National Archives access restrictions questionable

19 June 2015

We examine the same document in two separate folders at the National Archives of Australia (NAA). One copy has parts blacked-out, the other is not redacted. We ask: Were the specific redactions justifiable and what are the broader implications of this inconsistency at NAA?

To redact or not to redact?

To redact or not to redact? Questions on access restriction decisions.

A late-1976 four-page report, apparently from church-connected sources, offered a rare independent view on conditions inside Indonesian-military-occupied East Timor. The report, broadly confirming Fretilin-led resistance claims, gained  immediate attention from Australian media, NGOs and activists and was analysed for Australian parliamentarians by James Dunn.

The report also came to the attention of the Australian Government at the same time and was assessed by its Department of Foreign Affairs & Trade (DFAT) and the Joint Intelligence Organisation (JIO*). More than thirty years later, the relevant folders from DFAT and JIO were released for public access. The JIO copy of the report was significantly redacted before its release in 2011, but the DFAT copy was left completely uncensored (released 2012).

This inconsistency raises doubts on the reliability of NAA decisions on restricting public access to many Timor documents.

What was redacted?
The unredacted DFAT copy shows that the main JIO redactions obscured references to Timorese, Indonesian or international Church organisations. We can reasonably conclude that the redactions sought to either hide or protect  the unidentified author’s Church connections.

Was the redaction justified?
In terms of personal safety of the authors, there is no doubt that the redacted material was very sensitive in 1976; other comments in both folders stress this. We strongly doubt, however, that the information was still sensitive in 2011 when this redaction was applied – especially since no individual is immediately identifiable.

Formal easons for redactions.

Folios 61-65: Formal reasons for redactions.

The access decision redacting the report in the JIO folder was specifically based on Section 33(1)(a) of the Archives Act. This provision restricts access to any material which “would damage Australia’s security, defence or international relations”. In a close reading of the reasons for redacting this report (click on graphic above), we cannot see any reasonable basis to invoke Section 33(1)(a) in the case of this document.

Our views are effectively confirmed by the access decision on the DFAT folder. Other material in the DFAT folder was redacted or excluded under Section 33(1)(a), but not this particular document. The DFAT folder also contains additional unredacted material about the original source of the document.

What are the implications?
At the very least we can conclude from this example that NAA restrictions** on access through redaction under Section 33(1)(a) are inconsistently applied. Of more concern is the implication from this particular example that redactions in other NAA documents about Timor may be similarly unjustifiable.

A researcher can wait for up to two years*** for a Timor folder to be examined before being released. As Australian researcher Clinton Fernandes has found, challenging NAA redactions after the initial release of documents can be an onerous process. This is particularly so for materials from intelligence agencies like JIO. It is reasonable, then, for researchers to expect the access decision-making processes to be robust.

Regrettably, this present example certainly throws doubt on the reliability or legitimacy of restrictions on access to some materials at NAA.

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NOTES:
*JIO was the name of the Australian military’s intelligence arm, now called the Defence Intelligence Organisation (DIO).
** It is very likely in both cases that the access decisions taken were recommended to NAA by the relevant agencies (ie DIO and DFAT). Nonetheless, it is NAA which takes formal responsibility for the decisions.
*** A CHART analysis of wait-times for NAA access decisions is in preparation.


Tapol & Timor Link now online

6 April 2015

tapol-tlink

Two influential print journals which extensively covered occupation and resistance in East Timor are now available online.

They are Tapol Bulletin, published by the UK-based Tapol and  Timor Link, published by London’s Catholic Institute for International Relations (CIIR, now Progressio).

In cooperation with the publishers, the journals were digitised by the Library of Victoria University in Melbourne and are accessible online through the library’s digital research repository. The digitisation project was initiated by CHART.

TAPOL Bulletin
All issues of the printed journal (1973-2008) can be seen here: Tapol – VU Research Repository.

Created by Carmel Budiarjo in 1973 to campaign for the release of political prisoners held since the 1960s by the Suharto regime, Tapol gave increasing attention to the Timor issue from the mid-1970s.

A particular strength of Tapol’s work on Timor was its knowledge of Indonesian language and politics and it played a key role in making internal Indonesian military documents available internationally.

Timor Link
Most of the issues of Timor Link can be seen here: Timor Link – VU Research Repository.

The London-based Catholic Institute for International Relations was a non-government human rights and development  organisation with interests in central America, southern Africa and Asia. CIIR’s pamphlet series, ‘Comment’ tackled the Timor issue in 1982, marking the start of the organisation’s increasingly influential voice on the topic, especially in European human rights and Christian Church circles.

Timor Link became CIIR’s principle vehicle for news and advocacy on Timor from its inception in 1985 until it ceased publication in 2002.

CHART will add links for these journals to its online access point for digitised Timor newsletters – CHART Periodicals.

Acknowledgements
Chart wishes to thank staff of the Victoria University Library for taking on this digitisation project – especially  Ralph Kiel, Adrian Gallagher, Mark Armstrong-Roper, Lyn Wade and Ingrid Unger.

We also wish to thank Tapol and Progressio staff for their most agreeable response to the project idea – especially Paul Barber and Barbara Patilla (Tapol) and Daniel Hale (Progressio).

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Note on Tapol/CIIR archives
The materials collected and created by Tapol and CIIR during their years of public advocacy on Timor will be of much interest to future researchers.

Tapol archives: Most of the Tapol archive is held by the Mario Soares Foundation (FMS) in Lisbon as part of a larger collection of its Timorese Resistance archive. Some 6,500 items from the Tapol archive can be seen in digital form on the FMS-created database, Casa Comum.

CIIR / Timor Link: CIIR’s extensive collection of Timor materials has been preserved but is not yet available for research access. CHART briefly examined the collection in London in late 2013; further information to come.


Keeping secret (some) Australian goverment archives

16 April 2014

The National Archives of Australia’s holdings of government records about East Timor are a rich evidential and research resource, but parts of the record remain closed to public scrutiny.  We explore this continuing secrecy through summarising a recent effort by researcher and author Clinton Fernandes to access some restricted 1981-1982 documents.

naa-parts2021red

On 2 April 2014, the President of Australia’s Administrative Appeal Tribunal (AAT) affirmed an earlier National Archives of Australia (NAA) decision to deny Clinton Fernandes access to parts of two Department of Foreign Affairs & Trade (DFAT) folders about East Timor (pictured above).

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.