Senator David Shoebridge – Estimates questions relating to Australia’s commitment to the ICC and to its arrest warrants

Photo of Senator David Shoebridge
May 30, 2024

I am. Secretary, yesterday the Prime Minister was asked directly whether or not he would reaffirm Australia’s full commitment to the International Criminal Court and also whether or not that included a commitment to arrest any person for whom the International Criminal Court issued a warrant, including the Prime Minister of Israel, Benjamin Netanyahu, and he refused to make either commitment. Was that on the advice of your department?

CHAIR: I’m sorry, Senator Ghosh, I do need to share the call. Senator Shoebridge, I assume you’re seeking the call?

Senator SHOEBRIDGE: I am. Secretary, yesterday the Prime Minister was asked directly whether or not he would reaffirm Australia’s full commitment to the International Criminal Court and also whether or not that included a commitment to arrest any person for whom the International Criminal Court issued a warrant, including the Prime Minister of Israel, Benjamin Netanyahu, and he refused to make either commitment. Was that on the advice of your department?

Ms Jones : Chair, that’s in the Integrity and International Group; the international law area of the department has responsibility for that. I’ll be guided by you as to where you would prefer that to be answered.

Senator SHOEBRIDGE: Chair, this is clearly cross-portfolio because it’s the advice between this department and the Prime Minister and Cabinet.

Ms Jones : I took cross-portfolio to be within this portfolio.

CHAIR: Secretary, cross-portfolio is in relation to matters that would involve officers from two parts of your department, and that’s why we ensure we have this section of the day. Senator Shoebridge, we have been trying to assist the secretary this morning by ensuring we are putting questions in the correct part of the program. There’s no indication from the secretary that your questions won’t be answered by those relevant officials when they’re available. We do need to make sure that we are sticking to this program today. Your questions will be relevant in which part of the program, Secretary?

Ms Jones : Integrity and international.

CHAIR: I note your question—sorry, Senator Shoebridge, there was the last part of it. Obviously, questions that are relevant to PM&C would be asked in that committee, but questions in relation to advice from this department would be relevant in another part of the portfolio.

Senator SHOEBRIDGE: Much like the questions from Senator Cash, which related to interactions between this department and Home Affairs on migration, which you ruled, quite rightly, to be in order in this part; my questions are about interactions between this department, the Prime Minister and the Prime Minister’s office, which are clearly covered under the provisions of budget estimates in this portfolio.

CHAIR: Senator Shoebridge—

Senator SHOEBRIDGE: I wonder why there’s one rule for one issue and—

CHAIR: Senator Shoebridge—

Senator SHOEBRIDGE: a different rule for a different issue.

CHAIR: Senator Shoebridge, do not continue that statement, because it is not correct. That’s not a correct characterisation of what I said to Senator Cash, and what the secretary advised Senator Cash is that part of the question that she was asking will be relevant to a later part of the program. I think even Senator Cash agreed to come back and ask part of those questions to the relevant part of the program. We are trying to assist the committee to stick to the agreed program and assist the officials who are going to be available to you later on. I’m sure the secretary can answer more general questions and the minister can answer questions about advice, which is what Senator Cash was going to.

Senator SHOEBRIDGE: That is what I’m asking.

CHAIR: Keep those questions relevant to that part of the section.

Senator SHOEBRIDGE: That is what I am asking.

CHAIR: If the secretary lets you know that officials will be available later in the day, you should accept that answer.

Senator SHOEBRIDGE: I will continue to press my questions, as did Senator Cash, on what, if any, advice was issued by—

CHAIR: That is absolutely not what happened.

Senator SHOEBRIDGE: this department to the Prime Minister to allow him to not make a commitment to either the ICC or to enforce an arrest warrant if an arrest warrant is issued against the Prime Minister of Israel. Was that advice provided by this department to the Prime Minister?

CHAIR: Secretary, if those questions are relevant to another part of the program, you can let us know. If Senator Shoebridge continues to press, then I’ll have to suspend the hearing and we’ll have to have a private meeting.

Ms Jones : I should note there are two potential areas that would be able to contribute to assisting to respond to those questions: the National Security Group, where we have our international crime cooperation area, as well as integrity and international, where we have our international law officers.

Senator SHOEBRIDGE: Then it is clearly cross-portfolio because it relates to two elements within the department. Consistent with your just stated ruling, I am going to press the question. Secretary, when the Prime Minister was asked yesterday if he would give a full commitment to the International Criminal Court and whether or not that included a commitment to arrest any person for whom the court issues an arrest warrant, including the Prime Minister of Israel, Benjamin Netanyahu, was the Prime Minister’s refusal to make any such commitment a result of advice from your department?

Ms Jones : I would need to check with relevant officers. I have no understanding of that, so I’d need to bring the relevant officer here.

CHAIR: They will be here later in the program.

Ms Jones : I have no knowledge of that.

Senator SHOEBRIDGE: The officers are here. We have over 100 people—

CHAIR: No, we’re not—

Senator SHOEBRIDGE: in the room.

CHAIR: This is exactly what I’m saying, Senator Shoebridge. We’re not going to jump forward in the program. I’ve asked Senator Cash to make sure that her questions are relevant. I’ve asked Senator Ghosh to make sure his questions are relevant. This is not about the question you are asking. This is about ensuring that we are asking relevant questions. The secretary has said to you that these questions are relevant to another part of the program—

Senator SHOEBRIDGE: To two parts. Consistent with your ruling, this is clearly cross-portfolio. You have not asked the secretary if those officers are present in the room. Are they present in the room, Secretary?

CHAIR: I don’t need to ask the secretary that. I am saying to you that we have a program that we’re going to stick to today.

Senator SHOEBRIDGE: Can we have a private hearing, please?

CHAIR: If you want to suspend the hearing, we’ll have to do that.

Senator SHOEBRIDGE: I would like a suspension and a private hearing about a series of rulings that have been made this morning.

CHAIR: We’re suspending the hearing.

Proceedings suspended from 09:43 to 10:02

CHAIR: We’re going to resume the hearing. Secretary, we’re in cross-portfolio, corporate and general matters. If there are genuine cross-portfolio questions and senators are seeking questions where there is a relationship between two parts of your portfolio, that is where these questions will be asked. If officials are available and can assist, that would be helpful. Senators will also listen to your advice about where questions should be asked in parts of the program, but if we can assist the committee and we have genuine cross-portfolio questions, this is the time of the day for them to be put. Thank you for your assistance and that of your officials. Senator Shoebridge, just before we proceed this morning, I made a statement about reminding senators about the work that we’re doing in implementing the Set the Standard report. As chair, I’m going to ensure the proceedings are conducted in an orderly, respectful and courteous way. I remind all senators that this is a workplace and we are going to conduct this hearing in that manner. Senator Shoebridge, you have the call.

Senator SHOEBRIDGE: Thank you, Chair, and thank you for that clarification about cross-portfolio, too. That’s very helpful. Secretary, did you want me to repeat the question? You said that they covered both national security and integrity. Do you have officials from national security and integrity amongst the 80-odd officials behind you?

Ms Jones : Yes, I do. I did take the opportunity during the break to check with the relevant officials to be in a position to answer your question from both areas, the international law area and the international crime cooperation area. I can advise that we did not provide any advice to the Department of Prime Minister and Cabinet in recent days that went to the question that you asked. I would note that we have been engaged broadly in a range of mechanisms that have been established since October relating to the Israel Gaza issue. But in very direct response to your question, the answer is, no, the department didn’t provide any advice, noting that the issue around any potential arrest warrants is still subject to consideration by the ICC.

Senator SHOEBRIDGE: Were you asked for advice from the Prime Minister’s office in relation to Australia’s position if an arrest warrant issues, as has been sought against Prime Minister of Israel Benjamin Netanyahu, about whether or not or how Australia would enforce such an arrest warrant if he entered our jurisdiction?

Ms Jones : I’ll just be really clear that we don’t provide advice to the Prime Minister’s office. It would only be to engagement with the Prime Minister’s Department. I’m not aware of any requests specifically from the Prime Minister’s Department on that issue. On that, because it’s slightly different from what you’ve asked, I should check with officials.

Senator SHOEBRIDGE: If the officials could come forward, that would be useful. Whilst they’re coming forward, I might put the next question to you. Have you had engagement with the Department of Foreign Affairs or the Foreign Minister as to the legal position in Australia should the International Criminal Court affirm the warrant that has been sought against Prime Minister of Israel Benjamin Netanyahu?

Ms Jones : Again, I would note we’ve had general engagement. I’d need to refer to colleagues about that specific issue.

Ms Sheehan : In relation to your first question about whether PM&C has requested advice on that topic from the department, no, they have not. As the secretary has said, the department has been broadly engaged on issues relevant to the conflict through broader whole-of-government mechanisms.

Senator SHOEBRIDGE: Thank you. My second question was in relation to the Department of Foreign Affairs and Trade. Has your department provided any advice to the Department of Foreign Affairs and Trade on that same issue, on the enforceability, the enforcement, and the position of Australia should an arrest warrant issue against the Prime Minister of Israel, Benjamin Netanyahu?

Ms Sheehan : We do engage very closely with the Department of Foreign Affairs and Trade. From our perspective, it’s our Office of International Law engaging with colleagues that also work on international law issues, and so we wouldn’t be able to provide the content of our legal advice or discussions on those topics.

Senator SHOEBRIDGE: Was advice sought? I’m not asking for the content of advice. Has advice been sought about the legal position? Is there an obligation on Australia to enforce a warrant?

Ms Sheehan : They are, I guess, topics under consideration by legal areas of the department, and we have been providing, as we have throughout the course of the conflict, legal advice relating to a range of issues.

Senator SHOEBRIDGE: Has that advice been provided to DFAT, as to the legal position, the legal obligation, of the Commonwealth if an arrest warrant issues against Prime Minister of Israel Benjamin Netanyahu?

Mr Newnham : I think it’s important just to frame our answers here. It would not be helpful to speculate on possible future requests, and consistent with longstanding practice as well we wouldn’t seek to provide advice to this committee. I would note that, as a state party, Australia has a general obligation to cooperate fully with the court and prosecutions. I would also note that it is a matter for the ICC itself as to whether or not to issue warrants. At the moment, they are just applications.

Senator SHOEBRIDGE: Has the advice been provided about what ‘cooperate fully’ means in the circumstances of an arrest warrant issued? Does that include an enforcement of an arrest warrant? Is that the obligation Australia has as a party to the ICC?

Mr Newnham : I’ll draw on colleagues to answer your specific question. What I would say is, as I made the point earlier, a decision whether or not to issue an arrest warrant is a matter for the court in the independent exercise of its functions. As I said, it would not be helpful to speculate, and any requests for assistance are considered on a case-by-case basis, taking into account the content of the request and our international and domestic legal obligations. I’ll see if Ms Sheehan would like to add to her answer.

Ms Sheehan : There’s not advice that we’ve provided to DFAT on the issue. The issues are one that we collectively consider.

Senator SHOEBRIDGE: Has there been generic advice provided in relation to Australia’s obligation to cooperate fully with the ICC as to how that would play out in circumstances where an arrest warrant is issued by the ICC and the subject of the arrest warrant is in an Australian jurisdiction? Has that advice been provided?

Ms Chidgey : We’ve been involved in discussions with DFAT just on the procedural arrangements under the International Criminal Court Act. Obviously, as my colleagues have explained, no warrants have been issued, so it would be speculative to discuss any of that. But that act has international crime cooperation provisions set out in it.

Senator SHOEBRIDGE: What are the procedural arrangements that are in place?

Ms Chidgey : There’s a lot of detail in that act. Broadly speaking, we would provide advice to the Attorney-General, and he could consider requests.

Senator SHOEBRIDGE: Ultimately, is there a discretion in the office of the Attorney-General or is it a legal obligation to issue an arrest warrant in circumstances where—

Ms Chidgey : The act provides for a discretion.

Senator SHOEBRIDGE: Have you provided advice on what may inform that discretion?

Ms Chidgey : No, we have not. As I’ve said, we have not got any requests to act on and no arrest warrants have been issued.

Senator SHOEBRIDGE: The Leader of the Opposition has publicly called for Australia to cut ties with the ICC. Has any advice been provided by this department to either Prime Minister and Cabinet or DFAT in response to the call from the Leader of the Opposition for us to cut ties with the ICC?

Mr Newnham : Not that we’re aware.

Senator SHOEBRIDGE: If that reckless proposal was to proceed, what would be the arrangement? What would need to be done to cut ties with the ICC?

Ms Jones : I’m not aware of the statement that’s been made around cutting the ties. That is not something that we have considered or been asked to provide any policy or advice on.

Senator SHOEBRIDGE: Chair, consistent with your ruling, I may drill down into this further in later parts. I appreciate the opportunity to have this considered across these two parts of the portfolio.

CHAIR: You’ve probably got a sense of the time. I am going to share the call. Senator Cash, you have the call.

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