Dr Fernandes, a former Australian Army military intelligence officer, presented his case at the Administrative Appeals Tribunal (AAT) on Wednesday with barrister Ian Latham.
The duo has worked in the past on similar challenges which successfully disclosed a significant number of documents pertaining to historical Australian secret intelligence operations overseas.
During the first day of the three-day hearing, Mr Latham argued there is a public interest in disclosing these documents in an appropriate manner and claimed that much of this material is already in the public record.
“It has been formally and informally known about Australia’s involvement in Chile,” he told the tribunal.
“In my submission, the publicly available evidence will show that ASIS has undertook operations and that these operations took place at a time the US was involved in undermining the Allende government.”
General Augusto Pinochet and the military junta in Chile in 1973. Source: AP
He added that ASIS had offices in Chile and that those offices hosted CIA agents.
In his summary, Mr Latham said the events were some 50 years old, and most of the people involved were deceased. He highlighted that the applicant expected that whatever “needs to be kept secret should be kept secret”, and that the confidentiality of sensitive matters “should be maintained”.
He argued, however, that not all the classified documents they seek to disclose are intelligence documents, but government documents on authorisations, which are an important part of the historical record.
The lawyer representing the National Archives, Andrew Berger, argued that the classified documents are Commonwealth documents and highlighted that past decisions which categorised them as “exempt” from release under Archives Act were “carefully considered”.
Mr Berger said should the tribunal reach “positive satisfaction” that records are “safe” to be released, then it must request the inspector-general to provide evidence.
He also emphasised that a ‘mosaic analysis’ would need to take place.
According to the Mosaic Theory in national security matters, dissimilar and divergent items of information can take on added significance when combined with other items of information.
In this regard, Mr Berger explained that individual pieces of intelligence are like a “jigsaw puzzle”, that can be put together, and no one can “possibly know all the information that our adversaries have to piece together”.
“If the tribunal was to look at any word in a number of documents, they might wonder why they can’t be released, but they don’t realise the damage that can arise [when combined with other information],” he said.
The tribunal will hear evidence from three witnesses, including Anthony Sheehan, the Department of Foreign Affairs and Trade Deputy Secretary of International Security, Humanitarian and Consular Group and former ASIO Deputy Director; ex ASIO officer Peter Darby*, who had served the intelligence agency for 40 years; and Jack Lowe*, an ASIS employee for more than 25 years.
The tribunal heard that all three witnesses had previously reviewed records and had carefully considered their advice to keep them secret.
East Block of the National Archives of Australia in Canberra. Source: Getty
Mr Lowe, who is the respondent’s primary witness, is expected to “justify every redaction of the material”, according to Mr Berger.
The tribunal heard Mr Lowe had reviewed the records and taken into account the age of the information and what is in the public domain in deciding what needs to be protected. He also reportedly considered the mosaic analysis.
Mr Sheehan told the tribunal that in his capacity as a DFAT representative, he has identified elements in the documents that need to be protected.
“There are portions that cannot be disclosed,” he said, but conceded that in some cases “overall”, the potential damage to Commonwealth diminishes over time.
A need for secrecy, 50 years on?
Prior to the hearing, Dr Fernandes
“The harm to Australia's national security today is non-existent, as the documents are already some 50 years old,” he said.
Mr Latham told SBS Spanish previously: “There's already significant public disclosure as to Australian activities in Chile during the period from a number of the participants in the process, both of a political and also at an administrative level.”
The tribunal proceedings have been scheduled to take place until June 4, but the rest of the hearings will be held in secret.
Attorney-General Michaelia Cash issued a public interest certificate, which suppresses the disclosure of evidence provided by government agencies such as ASIS, ASIO and DFAT, claiming it “would be contrary to the public interest because disclosure would prejudice the security, defence or international relations of Australia”.
This means that if the AAT decides against disclosure, the Australian public will never find out why.
AAT 'not a court'
The Administrative Appeals Tribunal is unlike a court. All its members, including its presiding Federal Court judge, are appointed by the attorney general.
Furthermore, when sessions are held behind closed doors applicants "don't get to see the other side’s submissions, or at least the bulk of their submissions, or the bulk of their evidence," Mr Latham told SBS Spanish.
Often you don't even really see the substance of their argument at all. So, it's a very different process to the way litigation normally works, where both sides are required to display both their arguments and their evidence.
What happens in the next two days of hearings and the outcome is hard to predict. The tribunal may or may not decide to call the parties back to present further evidence, and it could take weeks or even months before a decision is handed down.
What we know about Australia’s secret involvement in the Chilean military coup
Australia’s involvement in Chile became public in 1977 after former Prime Minister Gough Whitlam set up a royal commission to investigate Australia’s security services.
Mr Whitlam himself told the Parliament he had knowledge that "Australian intelligence personnel were working as proxies of the CIA in destabilising the government of Chile".
Former Minister for Immigration Clyde Cameron told the ABC’s Four Corners program in 1983:
President of Chile Augusto Pinochet is seen in Santiago, Chile in this file photo from Oct. 1983. Source: AAP
I was staggered when I first became minister for immigration to discover that there were something like 21 or 24 postings around the world of ASIO agents who were posing as immigration officials.
“In fact, they were part of the immigration department’s establishment overseas and when I discovered the role which Australian intelligence had played in the overthrow of the Allende Government in Chile in 1973 I was appalled to think that my own department was involved in this sort of work and that our intelligence agents in Chile were acting as the hyphen, if you like, between the CIA which weren’t able to operate in Chile at that time, with the CIA and the Pinochet junta.”
ASIS is Australia's overseas secret intelligence collection agency, while ASIO is Australia's Security Intelligence Organisation. They are two separate agencies, focusing on gathering different types of intelligence.
The National Archives of Australia is required to release most records after 20 or more years, unless they are deemed “exempt”, on the basis of national security, or on grounds that they could cause damage to the Commonwealth or international relations.
Dr Fernandes first applied to access records relating to ASIS operations in Chile under the Archives Act in August 2017.
Because the National Archives of Australia made no decision to release the documents within the prescribed 90-day period, which is considered a “deemed refusal”, Dr Fernandes sought this reviewed by the tribunal.
The tribunal then allowed the director-general of the archives more time to review Dr Fernandes’ application.
Two years after submitting his request, in September 2019, Dr Fernandes received a letter informing him his application to access the records had been formally rejected as they had been “exempted”.
It has taken Dr Fernandes almost two more years for the AAT to hold a hearing on this matter.
After the end of the first day of hearings, Dr Fernandes told SBS Spanish that he is “quietly confident that they have a strong case”.
It remains to be seen if the AAT agrees.
*Not their real names - changed as part of the proceedings.
