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]
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.
Chart/John Waddingham are an essential and unredactable asset – partly because John is not paid, at least not greatly paid if at all.
Australian Archives has great expertise, but staff have to be paid.
Australian governments in recent years have cut payments for such facilities, or at least not increased them. If we want this expertise to continue, and deal with warehouses of stuff just sitting there, the Aust Govt needs to double their funding, and quick before existing expertise gets as old as Wadds and fades away – losing the expertise of decades.
Haha. Thanks Wes. Paid, as it happens, if not greatly. But no complaints from me. More seriously, though, lack of government funding for almost all national institutions of memory is a serious problem in Oz. Luckily CHART does not rely on Australian Government funding. But we are honoured to have had grants for our work from the Timor-Leste government in 2014-16 and 2019. jw