Subject: Will we see the Balibo file?

Will we see the Balibo file?

Canberra Times

19 Jun, 2010 12:00 AM

Few politicians are given high marks for integrity. But one exception is Defence Minister John Faulkner, who this week was honoured with the inaugural Button award for ministerial integrity. Named after the late Labor senator and minister John Button, the award was presented to Faulkner on Tuesday by the Accountability Round Table, a non-partisan association of academics, jurists, journalists and politicians seeking to promote honesty, transparency and openness in government.

In accepting the award, Faulkner declared he was proud of the reforms he had pushed through as Cabinet Secretary and Special Minister of State, including freedom of information reforms, whistleblower protections, a lobbyists' register and enhancements to political donation disclosure laws. Faulkner also acknowledged some apprehension ''because I suspect that, as much as I might wish to live up to the words in the citation, like everyone, I will from time to time, of course, fall short of the lofty standards invoked.''

A little defensively, he added that becoming Defence Minister had raised ''new challenges'' for his commitment to openness and transparency. ''I have always acknowledged there are instances where disclosure of information is not in the national interest, where national security interests are at stake,'' he said.

Indeed, in introducing his FOI reforms, Faulkner actually extended freedom of information exclusions to include the Defence Department ''in respect of its collection, reporting and analysis of operational intelligence and special access programs under which a foreign government provides restricted access to technologies''.

Now as Defence Minister Faulkner says he's endeavouring to ''negotiate a path between the public interest of transparency, and the public interest of national security''.

As a demonstration of what he claims to be Defence's ''more pro-disclosure culture'', declared his Department to be for the first time ''fully compliant'' with the FOI Act.

Time will tell just how much progress is made in establishing and entrenching a ''cultural shift'' in favour of disclosure and openness in one of the Federal Government's more secretive and least accountable fiefdoms.

At the moment, however, one test case poses an interesting challenge for the Defence Minister. While Australia's intelligence agencies are excluded from the scope of the FOI Act, they are subject to the access requirements of the Archives Act. Government documents may, subject to various specific exemptions, be released to public access after 30 years, and under the recent reforms this time period will be progressively reduced to 20 years.

However, even with the passage of three or more decades, the intelligence community is determined to hold on to many of its secrets.

Thus Defence has declared its determination to fight tooth and nail to prevent the release of secret intelligence papers that would shed new light on the deaths of the Balibo Five journalists in East Timor in 1975.

The department recently told a Senate estimates committee that it would strongly oppose an application by Australian Defence Force Academy lecturer Clinton Fernandes for the Administrative Appeals Tribunal to overturn a decision not to release 41 current intelligence reports written in the lead-up to Indonesia's December 1975 invasion of East Timor. Television journalists Greg Shackleton and Malcolm Rennie, cameramen Gary Cunningham and Brian Peters and sound recordist Tony Stewart died in October 1975 after trying to film Indonesian troops as they conducted a covert operation in the former Portuguese colony

Defence deputy secretary Peter Jennings told the Senate committee that the department's denial of access to the contents of reports of the former Joint Intelligence Organisation had been determined within the department's ''new culture'' of openness. The 35-year-old documents are understood to show former prime minister Gough Whitlam's knowledge of Indonesia's preparations to invade East Timor and cross-border incursions, including the raid that resulted in the murder of the five journalists at Balibo.

A former Defence intelligence analyst and historical adviser to producer Robert Connolly's movie Balibo, Dr Fernandes first applied for public access to the reports in mid-2007.

After more than two years' delay, and only after the commencement of legal action, the department released a number of papers, some formerly classified Top Secret For Australian Eyes Only. However, almost all of the contents had been blacked out on the grounds that the information ''continues to be sensitive''.

As an individual researcher without legal representation, and likely to be excluded from much of the Administrative Appeals Tribunal hearing on security grounds, Fernandes faces an uphill battle to win his appeal.

Independent MP Robert Oakeshott recently called on Faulkner to intervene in the case and press his department to release more information. ''Yes, it may cause some political discomfort for former prime ministers Gough Whitlam and Malcolm Fraser, but let's get the story told and have an open and honest debate about events from 35 years ago,'' Oakeshott told Federal Parliament.

However, Faulkner told the Senate he wouldn't get involved. ''Obviously, I am not handling it; I am not an FOI decision-maker in the department,'' he said. ''I am not ... involved in the decision-making processes at all, nor should I be.''

In one sense Faulkner is right to stand aloof from the process. Ministers shouldn't get involved in the detail of FOI applications. However, there are plenty of examples of governments facilitating the declassification of previously highly sensitive records the action of the former Hawke Labor Government in releasing the records of the 1954-55 Royal Commission into Espionage, the so-called Petrov inquiry, is but one example.

In more recent times diplomatic and intelligence records have been disclosed in a range of parliamentary and government inquiries and legal processes. The Government and intelligence community also devoted considerable time and effort to facilitating the release of many of the papers of the 1975-1977 Royal Commission into Intelligence and Security.

One might of thought that after more than 35 years of controversy, the Government would be keen to draw the curtain on the Balibo incident.

Greg Shackleton's widow and long-time East Timor activist, Shirley Shackleton, reckons Faulkner should be proactive, not hiding behind the formal FOI review process.

''It's high time that the remaining secrets about Balibo were brought into the light of day,'' she said yesterday. ''Who and what are Defence still protecting?''

An easy thing to do would be to refer all the relevant material to an independent authority, most obviously the Inspector-General of Intelligence and Security, or, better still, a retired judge, for assessment with a view to the maximum possible release.

There may still be some secrets to be protected, possibly relating to intelligence collection methodology, but this is questionable, given the tremendous changes that have taken place in encryption and signals intelligence over four decades.

Thirty years ago Western intelligence agencies argued that the sky would fall in on their work if the Allies' codebreaking successes against Nazi Germany and Japan in World War II were ever revealed. But within a few years those secrets were disclosed and the intelligence business didn't miss a beat.

In any case, intercepted messages and specific intelligence collection techniques, however dated, are unlikely to be disclosed in the high-level intelligence assessments Fernandes is seeking.

Although his commitment to openness and disclosure is clear, Faulkner is also a great Labor loyalist. He is the author of a centenary history of the federal Labor Party and three years ago moved a Senate motion to celebrate Gough Whitlam's standing as the longest-lived of Australia's elected prime ministers, declaring the Labor icon ''a hero ... and a towering figure in Australia's political landscape.''

Faulkner wouldn't wish to do anything that would embarrass Whitlam. But it's in circumstances of potential embarrassment and awkwardness that commitments to principle are tested. Perhaps the Defence Minister should think again and give some personal leadership to support the claimed new culture of openness and accountability.

Philip Dorling is National Affairs Correspondent

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