Former Australian Army military intelligence officer Clinton Fernandes is well known in the National Archives of Australia — an institution where he spends much of his time researching historical documents, and whose decisions he has challenged several times.
Dr Fernandes, a professor of International and Political Studies at the University of New South Wales, and his barrister, Ian Latham, have worked together for more than a decade in various cases that have successfully managed to declassify a number of documents relating to Australian operations overseas.
The duo has fronted the Administrative Appeals Tribunal (AAT) several times, arguing their case to overturn decisions made by the National Archives of Australia to keep historical documents secret regarding Australian operations in Timor-Leste, Cambodia, and now, Chile.
Dr Fernandes says his efforts are about scrutinising Australia’s foreign relations.
"It's a matter of understanding Australia's place in the world. We as citizens have the right to see government records after they are 20 years old, under the Archives Act,” Dr Fernandes explains.
And I hear so much about how we're a good international citizen, so I think, as a political scientist, I want to test that proposition. And so I focus on areas like our conduct in Timor, in Indonesia, and of course, in Chile.
Since the 1970s, there has been mounting evidence pointing to Australia’s secret involvement in the Pinochet coup.
Australian intelligence officers are believed to have assisted the United States’ Central Intelligence Agency (CIA) in undermining Chilean President Salvador Allende’s elected government, but the documents surrounding Pinochet’s coup have never been released.
During Pinochet’s brutal dictatorship (1973-1990), dissidence was punished without mercy. Anyone perceived to oppose the regime could be denounced, arrested, disappeared, and executed.
According to reports from the Truth and Reconciliation Commission, the National Corporation for Reparation and Reconciliation, and the National Commission on Political Prison and Torture, the total number of Pinochet-era victims exceeds 40,000 people, at least 28,000 of them were tortured.
More than 3,000 were killed or "disappeared" and at least 200,000 people fled to exile.
Read the SBS investigation about what happened in Chile, and the secret role Australia played:
Dr Fernandes and his lawyer believe the documents at the centre of their request are almost half a century old, and declassification poses no threat to Australia’s national security today.
“We will show that the harm to Australia's national security today is non-existent. We will show that we are not asking to find out the names of any of the ASIS or ASIO officers who were involved. What we want to know is the motivation, the instructions, the orders, the policy planning,” Dr Fernandes says.
Mr Latham adds that “much of this material is already public and that there is a public interest in disclosing these documents in an appropriate way."
“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,” he explains.
Highlights:
- 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.”
- 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.
- As part of the “Five Eyes” alliance, Australia shares intelligence and cooperates with other member nations (Canada, New Zealand, the United Kingdom, and the United States). While other five-eye members such as the United States have automatic declassification of records after a prescribed period, Australia doesn’t.
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Administrative Appeals Tribunals: “A creature of the executive”
Dr Fernandes and Mr Latham will be facing an uphill battle against the AAT during the first week of June.
It’s expected only the first morning of the three-day hearing when Dr Fernandes presents his case, will be public.
The rest of the proceedings are expected to be held behind closed doors, as the three members of the tribunal examine the evidence provided by the National Archives, ASIO, and ASIS to claim the documents should be kept secret, five decades after the events occurred.
Mr Latham, who has worked with Dr Fernandes on similar cases pro bono for a decade, explains that the tribunal is unlike a court.
"You 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 explains.
And 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.
In a paper published in 2016 delving into the procedures and challenges involved in seeking the release of Commonwealth documents under the Archives Act, Mr Latham describes the ATT as a “creature of the executive”, which “still has an independent position where it can re-determine Government positions.”
All members of the Administrative Appeal Tribunal, including its presiding Federal Court judge, are appointed by the attorney-general.
“[The AAT] exercises executive, not judicial power”, as “it stands in the shoes of the archives,” Mr Latham argues.
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.
Mr Latham says he considers the procedures required by the Archives Act and the Administrative Appeals Tribunal compelling, from a legal perspective.
“I think the other thing that's interesting about it too is the whole question regarding the historical record — as to what extent should the historical record be kept incomplete because of issues of national security and international affairs.”
What happens after the first three days of hearings is anyone’s guess. 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.
Even getting to this point has taken Dr Fernandes almost four years.
Access denied
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 to have 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 “exempted”:
“Section 33(1)(a) of the Archives Act provides that a Commonwealth record is an exempt record if it contains information or matter the disclosure of which under this Act could reasonably be expected to cause damage to the security, defence or international relations of the Commonwealth”, the letter reads.
It adds:
“These records contain information relevant to the performance by ASIS of its functions that remains sensitive.
“The public disclosure of this information could compromise the activities of ASIS and impair its ability to carry out its statutory functions. I consider the disclosure of the information I have exempted could reasonably be expected to cause damage to the security or international relations of the Commonwealth.”
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A need for secrecy, 50 years on?
Dr Fernandes labels the relationship between the US and Australia as a “transactional arrangement between two unequal partners”.
He believes the alliance between Australia and the United States under the Five Eyes agreement is especially important to consider when it comes to shared military and intelligence, given both countries offer vastly different avenues for the public and government to scrutinise their own intelligence operations.
The United States Senate Intelligence Committee has access to the intelligence, the House Intelligence Committee's access to intelligence, and the reason the United States changed its policy was Chile.
“When the story first broke that the United States government was involved and responsible for overthrowing the government of Salvador Allende, there was a big reaction and there were Senate committees designed to uncover what the United States government had done. And that's the reason why the United States put up the Senate committees that gave them real power to scrutinise intelligence operations. By contrast, Australia has had none of that."
In addition, the United States has a system of automatic declassification after a prescribed period of 10 or 25 years, depending on the agency and type of document, after which diplomatic cables and other records are made public. Some documents may remain classified for 50, 75 years, or more depending on their level of sensitivity, but such a decision must be demonstrated.
In Australia, declassification mostly happens after 20 years but access to records must be solicited. An applicant must submit a request, which is then assessed and approved or rejected by an archivist. Copies of released documents attract hefty fees.
There are also other barriers that preclude government officials and high-ranking public servants to even access information regarding Australia’s own intelligence operations.
"People don’t appreciate how bad things are. In the Federal Parliament, we have a committee called the Parliamentary Joint Committee on Intelligence and Security. It's hard for people to believe this, but the Parliamentary Committee on Intelligence and Security cannot examine any intelligence operation, past, present, or proposed. It can only examine the administration and financing of the agencies."
Furthermore, this committee is only integrated by members of the government and opposition parties — no independents or Greens can sit on the Parliamentary Joint Committee on Intelligence and Security.
For Mr Latham, the process of weighing up the grounds to allow historical disclosure and declassification versus the valid need for secrecy, whilst considering national security and the public interest, is highly complex.
“The question of scrutiny in relation to these also matters is a really vexed question because governments do have legitimate reasons to keep particular documents secret. I think the question these sorts of cases are, ‘where does the balance properly lie, in terms of disclosing those matters or keeping them secret?’,” Mr Latham explains.
“It's a difficult balance, I think both for the legislators and also the tribunals too, dealing with these matters.”
Mr Fernandes agrees there is a need for confidentiality in certain national security matters. However, he believes this doesn’t apply to the Chilean case, which is still widely unknown by the general public.
“Nobody even knows that we were involved in Chile, except for those who have a direct connection to people who speak Spanish or where Chilean or South American connection, and who are political.
“50 years ago, Australian troops were in Vietnam in order to show relevance to United States policy plans. Australia didn't have any direct fear of Vietnam invading Australia. But if the United States wanted to attack Vietnam, then we will join them and that way we can show that we are relevant to them.
“At the same time, we were also undermining the government of Salvador Allende in Chile, where once again we had no direct interest. The fact is people know about the Vietnam War and our involvement in it, but they don't know anything at all about our involvement in undermining the government of Chile."
For me, as an Australian, I'm very interested in understanding how and why we supported the United States in what is a profoundly undemocratic unfriendly act.
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.
This royal commission, led by Justice Robert Hope, did not examine the full implications of ASIS’s role in Chile. Its report did not condemn it either:
“At no time was ASIS approached by the CIA, or made aware of any plans that may have been prepared, to affect the internal political situation in Chile. The ASIS station in Santiago was concerned only with intelligence gathering via the agents handed over to it.”
However, not everyone is convinced that ASIS remained insulated from the CIA’s efforts – at the behest of none other than President Nixon - to unseat Chile’s democratically elected socialist president, Salvador Allende.
In May 1977, Mr Whitlam himself told the Parliament:
“It has been written - and I cannot deny it – that when my government took office, Australian intelligence personnel were working as proxies of the CIA in destabilising the government of Chile.”
Under the Pinochet regime, suspected left-wing activists were rounded up and detained, and many of them tortured.
Pinochet’s secret police, the DINA (Dirección de Inteligencia Nacional), operated outside the criminal justice system: there was no official arrest, no trial and no public record of thousands of people who ‘disappeared' during the dictatorship.
The authorities gave detainees’ families no information, and when families came looking, the regime denied any knowledge of detainees’ whereabouts.
President of Chile Augusto Pinochet is seen in Santiago, Chile in this file photo from Oct. 1983. Source: AAP
State-sanctioned terror, censorship, and self-imposed silence were so deeply prevalent, that to this day, many facts surrounding the dictatorship are still obscure.
In recognition of the many Chileans who needed to escape danger at home, the Whitlam government, with bipartisan support, created a special program for Chilean refugees to come to Australia.
Between 1974 and 1981, about 6,000 Chileans were taken in, and hundreds more joined them as part of a family reunion program. In 1971, there were 3,760 Chileans living in Australia, but by 1991, just a year after Pinochet’s regime came to an end, there were 24,042.
The high influx meant that there were fears some Pinochet agents could’ve reached Australian shores alongside legitimate refugees.
Victims and agents of Pinochet in Australia: The case of Adriana Rivas
For decades, rumours and suspicions that Australia was harbouring Pinochet-era operatives, while simultaneously welcoming the regime's refugees, tormented much of the Chilean community in Australia.
In 2013, SBS Spanish revealed that former DINA agent Adriana Rivas, had been working as a cleaner and nanny, and residing in Sydney since 1978.
Rivas is wanted in Chile for the aggravated kidnapping and disappearance of seven dissidents in the 1970s, including a pregnant woman. If proven, these are considered crimes against humanity.
Adriana Rivas during an interview with SBS Spanish reporter Florencia Melgar in 2013. Source: SBS Spanish
While on a visit to Chile in 2006, Rivas was arrested by local authorities there. She escaped while on bail in 2010 by illegally crossing the Andes into Argentina, where she boarded a plane back to Australia. Upon her return, she was living in taxpayer-funded housing until her arrest in 2019.
She is now waiting behind bars for the Federal Court to hand down a decision
Rivas has pleaded “not guilty” and denies all allegations made against her.
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