I have some more questions going back to the F-35, so probably Mr Jeffrey. Mr Jeffrey, you said before lunch that it’s immaterial whether or not the weapons parts for the F-35 supply chain that are manufactured and exported by Australia and sent to the United States will be used in the genocide in Gaza. When you gave that evidence, were you aware of the fact that, under law, you need to consider the risk that the goods may be used to commit or facilitate serious abuses of human rights? Were you aware of that legal obligation?
Senator SHOEBRIDGE: I have some more questions going back to the F-35, so probably Mr Jeffrey. Mr Jeffrey, you said before lunch that it’s immaterial whether or not the weapons parts for the F-35 supply chain that are manufactured and exported by Australia and sent to the United States will be used in the genocide in Gaza. When you gave that evidence, were you aware of the fact that, under law, you need to consider the risk that the goods may be used to commit or facilitate serious abuses of human rights? Were you aware of that legal obligation?
Mr Jeffrey : I am aware of the regulations under which export permits are granted.
Senator SHOEBRIDGE: So how could it be immaterial that the weapons parts will be used in the genocide, and how could it be immaterial that the weapons parts will be used in a war where the ICJ has made such clear rulings?
Mr Jeffrey : I was saying it is immaterial whether or not F-35s are employed in the conflict—rather, what we have to judge in granting a permit is whether the granting of that permit would contribute to an erosion of Australia’s national security interests or could contribute to a violation of Australia’s treaty obligations among them. As you know, there are 12 different criteria which we are required to assess any permit against.
Senator SHOEBRIDGE: I just read one of them to you.
Mr Jeffrey : That’s right.
Senator SHOEBRIDGE: And you say that it’s immaterial under the criteria—
Mr Jeffrey : No—
Senator SHOEBRIDGE: Let me finish my question. I just read one of the criteria to you. You say, in applying that criteria, which requires you to consider the risk that the goods may be used to commit or facilitate serious abuses of human rights, it’s immaterial that the weapon they eventually comprise, being the F-35 fighter jet, will be used in the genocide in Gaza. You say it is immaterial.
Mr Jeffrey : That’s how you’re phrasing it. What I’m saying is that I was responding to your question about whether or not the F-35 was employed by the Israeli Defence Force in the conflict in Gaza. I said it is not my role to confirm or deny what the IDF employs in terms of its force set. I said that question, of whether I can confirm, is not material to the question of whether I can grant an export permit.
Senator SHOEBRIDGE: Mr Jeffrey, the record will speak for itself. In granting export permits for the F-35 fighter jet, did you consider the fact that those weapons parts would be used to commit or facilitate serious abuses of human rights in Gaza? Did you consider that or not?
Mr Jeffrey : In relation to any export permit, and inclusive of permits that would involve contributions to the F-35 supply chain, we are required to review those decisions against 12 different criteria. I can table the criteria for your information if you wish. The criteria include what you mentioned, Senator Shoebridge, in relation to whether the export of goods under the DSGL might compromise adversely Australia’s defence or security interests or obligations to its allies and international obligations and responsibilities. This is No. 6. I think you mentioned No. 4. There are 12 overall that we need to balance those assessments against.
Senator SHOEBRIDGE: When you say ‘balance’, I think I’m now understanding what you’re doing. You’re saying that you put greater weight on providing weapons to an ally than you do on ensuring that those weapons won’t be used to commit or facilitate serious human rights abuses? You view this as a weighing exercise. Is that what you’re saying? How many human rights abuses are acceptable?
Mr Jeffrey : The customs regulations are clear that we’re required to weigh our assessments against 12 different criteria. That means that we have to look against each different criteria. We are legislatively obligated by law to look at those criteria. We do so. When there is an export permit that could relate to a country where it’s experiencing high-intensity conflict, obviously those assessments are much more complex and they are much more time-consuming. We have to examine each of those criteria very, very carefully. All the F-35 export permits were granted before October 2023. As I’ve mentioned earlier this morning in response to questions from Senator Ghosh, since the conflict has occurred, the Australian government has not granted a permit for a weapon or ammunition—
Senator SHOEBRIDGE: So you’re just relying on the existing ones to pump weapons parts into the conflict? Mr Jeffrey, you say you’re cognisant of your requirements, but the last time I asked you about this, your evidence was—I’ll just repeat it for you: ‘I don’t know if F-35s are being used in the conflict in Gaza.’ You’re adopting a ‘don’t look, don’t see, please ignore the genocide’ approach on this, aren’t you?
Mr Jeffrey : The point I was making then is the point I’m making now, which is: I can’t authoritatively tell you; you’d have to ask the Israeli government about its force deployment. I’m not going to be drawn on how that—
Senator SHOEBRIDGE: No. Your obligation is to review it under the criteria in the exports regs. It’s not my obligation to teach you; it’s your obligation to—
CHAIR: Thank you, Senator. Let the witness finish their answer, just in the same way we let you ask questions without any interruptions.
Mr Jeffrey : My point was simply that I can’t confirm for you, one way or the other, how the IDF is using F-35s. That is the responsibility of the Israeli government and the Israeli Defence Force. I was simply arguing the point or making the point that, whether or not the F-35s are employed by the IDF does not have a bearing ultimately on how I make the assessment. I have to be assured that whatever we export or whatever we grant a permit to be exported I can weigh against those 12 different criteria. I would have to therefore assess, irrespective of one capability or the other, the entirety of the issues in relation to the export destination.
Senator McAllister: If I may add to this, I did indicate earlier in response to questions from Senator Ghosh that the process of evaluating such applications obviously has become more complex as the circumstances of the conflict in Gaza have evolved. My answers to Senator Ghosh were related to a series of permits which have been recently granted in circumstances where it is necessary for the Commonwealth to preserve its own capability. There are six permits that have been granted in that context. They are for items that are used by Australian Defence and law enforcement, and those items will be returned to Australia. I did indicate—you may not have heard me—that the government is also scrutinising pre-existing active export permits to Israel to ensure that they are aligned with the calibrated approach that I have described. I think Mr Jeffrey is trying to point you towards the fact that he is required to assemble the necessary information for such a risk assessment every time a permit is before him. I think he understands that that requires examining all of the 12 criteria that you’ve pointed to in your questions.
Senator SHOEBRIDGE: Mr Jeffrey, have you reviewed any of the export permits for the dozens and dozens and dozens of F-35 parts that have been sent from Australia to the United States to be used in the genocide in Gaza since 7 October?
Mr Jeffrey : I think you won’t be surprised, but I’m not prepared to go into individual export permits and how they are assessed, but, of course, I’m very much happy to take you through—and my colleague, David Nockels, can take you through—the process of how the department receives applications for export permits—
Senator SHOEBRIDGE: If you’d just answer my question, that’d be most helpful.
Mr Jeffrey : and how we seek the decision. That’s my answer.
Senator SHOEBRIDGE: Did you take into account whether or not the provision of weapons parts, including by the only global supplier of the mechanism that opens the bomb bay doors for the F-35, would further militarise conflict within Gaza, when allowing those to proceed in the middle of a genocide?
Mr Jeffrey : I think I stated that these permits—
Senator SHOEBRIDGE: You stated no.
Mr Jeffrey : The government has not agreed to permits since October last year.
Senator SHOEBRIDGE: And so you’re just pumping it out under the existing permits. Is that what has happened? You’re just pumping them out, feeding a genocide using the existing permits, and that’s how you avoid having to answer this question?
CHAIR: Is there a question there?
Mr Jeffrey : No, I’m just referencing the timelines from which you’re referring to these permits.
CHAIR: Thank you, Senator. We better keep moving the call around. I’ll come back to you.
Senator SHOEBRIDGE: I table the FOI and the associated—
CHAIR: I’m moving the call around. I will come back to you, Senator Shoebridge.
Senator SHOEBRIDGE: For completeness, I’m tabling the FOI and the associated documents.
CHAIR: You’re not tabling, because I haven’t reviewed it.
Senator SHOEBRIDGE: I am tabling it.
CHAIR: You’re not tabling, because the committee has to review and accept the table. But in any event we’ll come back to you. Senator Pocock, you have the call.