The federal government has been accused of making a “disgraceful” attempt to cast secrecy over a case relating to Australia’s negotiations with Timor-Leste in the years prior to the controversial bugging operation revealed by Witness K and Bernard Collaery.
Last year, independent senator Rex Patrick challenged a decision not to release archived cabinet documents setting out Australia’s strategy for bartering with its impoverished ally on the Timor Sea maritime boundary in the early 2000s.
The negotiations were crucial to Timor-Leste, because the resources in the Timor Sea could help lift it out of poverty, but it was later revealed Australia had bugged the offices of the fledgling nation’s government to gain an upper hand.
Cabinet documents such as those sought by Patrick are typically made public after 20 years. But records about the Timor Sea negotiations have been withheld, initially because of the purported harm they could cause to relations with “the current government of a foreign country”.
Patrick is fighting in the Administrative Appeals Tribunal for the unredacted release of the documents, seeking a cabinet submission outlining Australia’s negotiating strategy, dated 29 August 2000, and a related minute, dated 4 September 2000.
But the government has indicated it will seek to have attorney-general Michaelia Cash use extraordinary powers to shroud at least part of the case in secrecy on the grounds that the information could harm relations with another country.
Patrick told Guardian Australia the move was “disgraceful”. He said the damage to international relations had already been done by Australia’s spying on Timor-Leste, later revealed by former intelligence officer Witness K and his lawyer Collaery.
“This is a shameful episode in Australian diplomacy in which the then Australian government spied and acted in bad faith in an attempt to steal the oil and gas resources of a newly independent and impoverished neighbour,” Patrick said.
“Australia’s relations with Timor would now be much better served by a policy of transparency, acknowledgement of past wrongs and a genuine apology, not by more dubious legal manoeuvres to suppress the truth.”
A spokesman for Cash said the attorney-general was yet to receive a formal request to intervene using its powers to suppress information, contained in section 36 of the AAT Act.
“Where proceedings, including AAT proceedings, involve sensitive information, the Commonwealth’s position is that proceedings should be open to the extent possible,” the spokesman said.
The National Archives of Australia, which has responsibility for releasing old cabinet records, said it could not comment while the matter was before the tribunal.
Patrick said the publication of the decades-old documents was no risk to Australia’s relations with Timor-Leste.
“After all, the damage was done there by the Howard government’s spying activities and the current government’s persecution of Witness K and former Timor-Leste legal adviser Bernard Collaery,” he said.
The cabinet papers are from one year after Timor-Leste’s 1999 independence referendum, but before its formal independence on 20 May 2002.
Patrick, after asking for an internal review of the decision to withhold the documents, was given a heavily redacted version of the cabinet minute.
All that can be surmised from the document is that a submission to cabinet about the Timor Sea negotiations was made. He is seeking full access to the document.
The rationale for withholding the documents has shifted. After initially citing potential harm to international relations, the government now says the redacted content could cause “damage to the security, defence or international relations of the commonwealth” and that disclosure could be used by “organisations or individuals of national security interest to take counter measures against security operations”.
Timor-Leste expert professor Clinton Fernandes, who works with the University of New South Wales, believes the documents will show Australia knew Timor-Leste was desperate for money following the destruction of its infrastructure by Indonesia.
The prosecution of Collaery for disclosing protected intelligence information is continuing before the ACT supreme court. He is planning to fight the allegations at trial.
