Philip Dorling – The Federal Court is to hear a "top secret" appeal by the Australian government aimed at suppressing information from a diplomatic file on Indonesian military war crimes in East Timor more than 30 years ago.
The highly unusual legal case, which involves a mystery government witness identified only as "X", is likely to set important precedents for how courts determine national security matters.
In a late development prior to Monday's hearing, the government upgraded the secrecy of the proceedings by obtaining an order from the court for its submissions and evidence to be treated as "top secret" – information that if disclosed would cause "exceptionally grave damage" to national security.
The case arises from a decision in April by Administrative Appeals Tribunal president Justice Duncan Kerr who ruled that the National Archives was right to deny University of NSW Associate Professor Clinton Fernandes access to parts of two Department of Foreign Affairs files dealing with an Indonesian military offensive across East Timor in 1981.
The operation involved the Indonesian army using East Timorese civilians as human shields and ended with a massacre of hundreds of people.
Attorney-General George Brandis issued a "public interest certificate" that excluded Dr Fernandes and his legal representative from hearing evidence presented by government witnesses.
Although the full reasons for Justice Kerr's decision are classified secret, the judge did reveal that Office of National Assessments deputy director-general Jim Hagan emphasised the "particular sensitivity" of Australia's relationship with Indonesia and warned of potential "damage to Australia's international relations and security interests."
Justice Kerr did agree, however, to the release of one line of text and another paragraph from diplomatic file dating back to 1981, and the prospective release of this information that is the subject of the government's Federal Court appeal.
The National Archives argues that Justice Kerr failed to fully take into account "closed and confidential evidence" given by secret government witness "X". The existence of "X" was not disclosed to Dr Fernandes during the tribunal proceedings.
Fairfax Media understands that the two sections of text relate to information from Australia's overseas espionage agency, the Australian Secret Intelligence Service.
Dr Fernandes and his legal counsel will be excluded from much of Monday's proceedings and will not hear the government's arguments relating to evidence provided by "X".
A former Australian military intelligence officer turned academic, Dr Fernandes has been engaged in a six-year legal struggle to secure declassification of archives relating to Indonesia's invasion and occupation of East Timor.
Speaking to Fairfax Media, Dr Fernandes was critical of the Attorney-General's intervention in the proceedings.
"The Australian Government is pursuing a secret appeal against a secret judgement about the secret evidence of a secret witness. This goes against the English tradition of fairness from which our legal system springs," Dr Fernandes said.
"Why compromise on those principles, just to protect a group of ageing war criminals in Indonesia?"
The appeal will be heard in Canberra by Federal Court Chief Justice James Allsop, Justice Geoffrey Flick and Justice Michael Wigney.