The public may never find out the true extent of Australian spies’ involvement in the 1973 Pinochet coup that overthrew the democratically elected government of President Salvador Allende in Chile, following a decision to keep the five-decades-old classified documents secret.
The Administrative Appeals Tribunal (AAT) handed down its decision on 1 November, stating the release of documents concerning Australian Secret Intelligence Service (ASIS) operations in Chile between 1971 and 1974, plus records about the toppling of Allende would “cause damage to the security, defence or international relations of the Commonwealth”, despite the passage of time.
The AAT’s decision reads:
Protecting our ability to keep secrets – and being seen to do that – may require us to continue suppressing documents containing what may appear to be benign or uncontroversial information about events that occurred long ago.
Former Australian army military intelligence officer, Dr Clinton Fernandes, .
He says his aim was to scrutinise Australia’s record as a good international citizen in light of its bilateral intelligence agreements with the US, which he describes as a “transactional arrangement between two unequal partners”.
“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," Dr Fernandes told SBS Spanish in July, prior to the start of the secretive three-day AAT hearings into the matter.
Upon learning the rejection of his appeal, Dr Fernandes said he was disappointed that the AAT had ratified the National Archives of Australia’s (NAA) decision that strips Australians from the right to know about “embarrassing details” of actions taken by the government half a century ago.
"The government continues to avoid scrutiny from the public, who would probably be appalled if they knew what it was doing covertly. There is a bipartisan consensus at work, with the opposition committed to the same level of secrecy," Dr Fernandes said.
Our track record as the world’s most secretive liberal democracy remains intact.
Dr Fernandes is perplexed at why Australia cannot declassify its documents, as the United States’ Central Intelligence Agency and Britain have declassified most of their records.
"The idea that we have to be seen as protecting secrets 50 years later is inconsistent with the fact that our allies have already declassified their records.”
The Administrative Appeals Tribunal is unlike a court. Considered a “creature of the executive”, it doesn’t exercise judicial power. The Attorney General appoints all its members, including its presiding Federal Court judge.
The proceedings to evaluate if the Chile and Allende records were ‘safe’ for release were held mostly behind closed doors, given Attorney-General Michaelia Cash issued a public interest certificate days prior, suppressing the disclosure of evidence provided by government agencies, ASIS, ASIO and DFAT.
This meant Dr Fernandes and his lawyer, Barrister Ian Latham, were precluded from the evidence and claims presented to counter their arguments.
Dr Fernandes, a professor of International and Political Studies at the University of New South Wales, and Mr 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 shady Australian operations in Timor-Leste, Cambodia, and now, Chile.
Since the 1970s, there has been .
Australian intelligence officers are believed to have assisted the United States’ Central Intelligence Agency (CIA) in undermining 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.
Augusto Pinochet and the military junta in 1973. Source: AP
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.
As a result of Dr Fernandes challenge in July, the AAT released hundreds of pages of never-before-seen, heavily redacted classified documents, which became the first-ever official proof that ASIS spies set up a station in Santiago in 1971, before the military coup that ousted Allende, following a US request. However, most of the files remain unpublished.
Key facts:
- 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.
- There are various accounts indicating ASIO spies were based in the Australian Embassy in Santiago, well after the Pinochet coup.
- 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.
“Most concerned that the Americans should not believe that he personally necessarily disapproved of what they were doing in Chile nor did he support Allende [Redacted],” the memo from April 1973 reads.
The Prime Minister said that the last thing he wanted to do was to take precipitate action in this matter that would embarrass CIA (sic).
Previously classified documents reveal the thinking behind Whitlam's decision to shut down M09 (ASIS) secret operations in Chile. Source: Supplied
Access denied, 50 years on
During the 3-day hearings in July, the Tribunal heard open and closed evidence from three witnesses, including ex ASIO officer Peter Darby*, who had served the intelligence agency for 40 years; Jack Lowe*, an ASIS employee for more than 25 years; and former ASIO Deputy Director Anthony Sheehan, from the Department of Foreign Affairs and Trade.
Tribunal documents detailing the basis of its decision-making clarified that, under the Archives Act, its role is not to “consider the historical value of the documents in question” as “that is a matter for expert judgment by historians when the documents are ultimately released”.
“We do not concern ourselves with the motivations of the person seeking access to the documents in question. We are also uninterested in the contents of the documents themselves, except insofar as we need to form a judgment about those contents in order to determine how the law should be applied,” the Tribunal decision reads.
It is also beside the point that some of the information in the documents may already be known or strongly suspected in some circles.
The same document contains excerpts of Jack Lowe's open affidavit, which states that the “public release of information from the 1970s about ASIS’s activities, including those involving foreign partners, can damage Australia’s national security, defence and international relations, particularly where it gives foreign intelligence agencies insights into ASIS’s areas of interest, methods and capabilities”.
“The public release of historical ‘administrative’ information can cause damage depending on the nature of the information. It could, for instance, provide an insight into the number and type of personnel deployed, the assistance provided by liaison services, or ASIS’s capabilities at particular point in time, which could ultimately lead to a reduction in the information available to ASIS staff members and agents or operational security," the document reads.
Mr Lowe claimed that, although the relevant records are now almost half a century old, “the public disclosure of the remaining material in the Chile and Allende records that have been exempted from release could reasonably be expected to compromise the activities of ASIS and impair its ability to carry out its statutory functions” as, in some cases “the passage of time has not been sufficient to remove or degrade the sensitivity of the information to the point where it can be released”.
Smoke pours from the Chilean presidential palace, La Moneda, in this Sept. 11, 1973, file photo, after being hit by rockets fired by the air force Hawker Hunter Source: AAP
While the events of the 1970s are seemingly frozen in time, the facts surrounding them can have implications for the present.
Mr Lowe added that he would illustrate why with evidence provided during the closed session.
ASIO’s Peter Darby also claimed the declassification of some of the material would “reveal the existence of relationships, including the nature and extent of these relationships, between ASIO and foreign countries and/or their intelligence services".
“There is an expectation, both on the part of the foreign partner and ASIO that the relationship itself, and any information shared or capability jointly developed will be kept confidential. In some circumstances this expectation extends even after the relationship is no longer active," Mr Darby said in his open affidavit.
Disclosure of this information may be prejudicial even where the information is historical, as these details of ASIO’s or other Australian intelligence service’s methods, relationships and procedures may still be employed today.
Both Mr Lowe and Mr Darby expressed concern that the documents could reveal the identities of Australian spies.
“Protecting the identity of ASIO employees is a key part of ensuring the secrecy and confidentiality that is critical to much of ASIO’s work,” Mr Darby said.
“The disclosure of the identity of ASIO employees may identify past operational activities in which they have been involved; warn targets that they were or are of security interest; and reveal ASIO modus operandi.”
However, Dr Fernandes and Mr Latham had told the AAT in their submission that they were not seeking the declassification of ASIO or ASIS names, emphasising that matters that should “be kept secret”, and adding that the confidentiality of sensitive matters “should be maintained”.
Mosaic Analysis and the perceived ‘threat’ posed by investigative journalists
According to Tribunal documents, mosaic analysis was an important consideration in their decision-making.
In matters of national security and intelligence, Mosaic Analysis Theory is applied to ensure innocuous, dissimilar and divergent items of information don’t take on added significance when combined with other facts.
The Tribunal stated that during the hearings it had been referred to “recent real-life examples of mosaic analysis carried out by investigative journalists working as part of the Bellingcat organisation”.
Part of the , Bellingcat describes itself as an “independent international collective of researchers, investigators and citizen journalists” that use publicly available information, social media and technology to investigate and probe a variety of subjects that pertain to human rights abuses, conflict and international crime.
“The Bellingcat investigators were able to draw together diverse threads contained in publicly available material to make startling disclosures. The journalists’ capacity for mosaic analysis pales in comparison to the capacity of foreign security and intelligence services who might combine disclosures from archived material with information obtained from illicit sources to form a more complete picture of the work of ASIS, amongst others,” Tribunal documents state.
In this regard, the Tribunal said it was guided by evidence provided by former ASIS and ASIO employees, Mr Lowe and Mr Darby, who maintained releasing the Chile and Allende records would hamper Australian agencies by revealing aspects that could lead to the identification of former or current intelligence agents, relationships between them and other government agencies, and other foreign agencies and their operatives.
However, Tribunal documents also state that there is a distinct difference between theories published in the media, versus official confirmation.
“Unofficial speculation in the media, literature and the public domain has a different values from official confirmation of the correctness or existence (or otherwise) of a particular matter,” the document reads.
“Information released by the NAA under the Archives Act is made available to the general public in a way that confirms that it is from a government record. Official confirmation of this kind can aid ASIS’s adversaries, such as a hostile foreign intelligence service skilled at mosaic analysis, to build a picture of ASIS, well beyond what ASIS intended to divulge.”
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”.
According to this memo, Whitlam reportedly said he did not disapprove of "what the Americans were doing in Chile". Source: Supplied
Other accounts suggest Australian Security and Intelligence Organisation (ASIO) agents, which normally focus on domestic security matters, were in Santiago well into Pinochet’s reign, working out of the Australian Embassy.
Former Minister for Immigration Clyde Cameron told Allies, a feature documentary broadcast by the ABC’s Four Corners program in 1983:
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.”
Victims and agents of Pinochet in Australia: The case of Adriana Rivas
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.
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.
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.
.
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.
Rivas has pleaded “not guilty” and denies all allegations made against her.
What's next?
Dr Fernandes said while it's not clear what avenue he would take next, there is scope for an appeal.
“We could appeal to de Federal Court, and in that sense, the court would not be bound by all these automatic secrecy provisions.
"But, if we went to the Federal Court and lost, we would be paying the government’s costs, which are prohibitive. So, unless there could be some way in which we could be indemnified against wearing the government’s costs, it’s very hard to conceive an appeal to the Federal Court, even though that appeal may be more promising.”
*Not their real names. Former ASIO and ASIS employee names were changed as part of the proceedings to conceal their identities.
