Senator Jordon Steele-John – Estimates questions regarding Australia’s obligations under international law; a letter from Birchgrove Legal; Australia’s support for an investigation by the ICC; and travel advice

Photo of Senator Jordon Steele-John
October 26, 2023

Can you tell me what legal advice your department has provided to the Prime Minister, the defence minister and yourself to ensure that the way in which the government has made public commentary in relation to the policies of the Netanyahu government in responding to the attacks of 7 October are in line with our obligations under international law?

Senator STEELE-JOHN: Minister, you are probably aware that this morning the Prime Minister was provided with a notice by Birchgrove Legal expressing their concerns that commentary from Australian government officials may be out of line with our commitments under various pieces of international law. Can you tell me what legal advice your department has provided to the Prime Minister, the defence minister and yourself to ensure that the way in which the government has made public commentary in relation to the policies of the Netanyahu government in responding to the attacks of 7 October are in line with our obligations under international law?

Ms Adams : I would say as a general proposition that the policy advice that the department provides takes into account our various legal obligations.

Senator STEELE-JOHN: Yes. So in this case, as the government prepared its various responses to the situation, was advice provided to the government to ensure that comments made by the defence minister or Prime Minister were in line with our obligations under international law?

Ms Adams : I repeat the answer. That would be an integrated part of providing advice.

Senator STEELE-JOHN: First of all—threshold—are you aware of this letter that’s been sent to the Prime Minister today? It’s been quite publicly reported on by the ABC and others.

Senator Wong: Yes, I read about it in the media.

Senator STEELE-JOHN: So you’ll be aware of the quite serious concerns that are expressed in that letter in relation to comments which the defence minister, the Prime Minister and Minister O’Neil have made.

Senator Wong: I don’t know. I haven’t seen the letter.

Senator STEELE-JOHN: That’s in the letter.

Senator Wong: I haven’t seen the letter.

Senator STEELE-JOHN: But that’s also in the reporting on the letter.

Senator Wong: And I’m sure you have a copy of the letter, Senator Steele-John.

Senator STEELE-JOHN: I have the article in front of me right here.

Senator Wong: Sure. That’s great. But, no, I don’t know what is in the letter. Others may have received it, but I’ve not sighted it this morning.

Senator STEELE-JOHN: To summarise it for you, they raise some quite serious concerns that, in the face of statements from the State of Israel’s defence minister describing Palestinians as human animals, for instance and also references by President Herzog that the—

Senator Wong: Sorry, these are Israeli government ministers, not Australian government ministers?

Senator STEELE-JOHN: I’ll finish—

Senator Wong: But I just wanted to be clear that those comments—the context—

Senator STEELE-JOHN: It is in the context of those comments by ministers of the State of Israel, including President Herzog’s observations that the people ‘of Gaza have brought this on themselves by voting for Hamas’—even though only 44 per cent of the people of Gaza ever voted for Hamas in 2006—that the failure of the Australian government to qualify its support for the State of Israel within the boundaries of international law risks the Australian government breaching its obligations under international law.

Ms McKenna : I would just add that we are aware of the reports of the correspondence from Birchgrove Legal. We would reject any suggestion that the government’s response has been inconsistent with international or domestic law. But I don’t think it would be appropriate for me to comment further on the correspondence from Birchgrove Legal.

Senator STEELE-JOHN: Thank you. Sticking with the question of international law, in 2021 the Office of the Prosecutor of the International Criminal Court commenced an investigation into the situation in Palestine, having engaged in a protracted legal process to assure itself of the court’s jurisdiction over East Jerusalem and the West Bank, and Gaza as well. At the time, the Morrison government opposed the investigation, and Australia was one of the parties to lodge dissenting briefs in the legal process. Is it your government’s position, Minister, that the Australian Commonwealth now supports the investigation undertaken by the ICC?

Ms McKenna : In 2021 the pre-trial chamber of the International Criminal Court found that the court has territorial jurisdiction over the Occupied Palestinian Territories, including Gaza, and the prosecutor has opened an investigation into the situation in the Occupied Palestinian Territories. In making its decision, the pre-trial chamber noted that any state or suspect might submit a jurisdictional challenge in any future stages of the proceedings, so I wouldn’t purport to pre-empt any such challenge or the court’s future consideration of those questions. Of course, the focus of the prosecutor’s current investigation is a matter for the prosecutor.

Senator STEELE-JOHN: Minister, that is a factual statement of the process at hand, but, in terms of the government’s position, not the departmental response, does the government support the investigation currently being undertaken by the ICC?

Senator Wong: I will take this on notice. Obviously, this also is something that the Attorney-General might be engaged on. But I don’t think I have anything to add to Ms McKenna’s answer.

Senator STEELE-JOHN: So you’ll take it on notice for the committee?

Ms Adams : Yes.

Senator Wong: Yes.

Senator STEELE-JOHN: Can I ask about the travel notices issued in relation to Lebanon? Are the right people still here for that?

Senator Wong: They’re not, but we can do what we can and we’ll defer it. We did try to facilitate those questions this morning.

Senator STEELE-JOHN: I understand. Maybe somebody can clarify so we don’t have to get them back. I just want to understand in more detail the practical implications for those seeking to travel to Lebanon.

Senator Wong: We did go through this this morning. I think you might have left.

Senator STEELE-JOHN: Right. Can I just clarify then: did it cover the implications for individuals in relation to travel insurance and those forms of protections if individuals seek to travel to Lebanon under such an order?

Senator Wong: What happens if people go when we’ve said do not travel?

Senator STEELE-JOHN: Yes.

Senator Wong: I don’t know what the implications are for travel insurance, but I would assume it would have an effect.

CHAIR: I don’t know if that’s something for the department.

Senator STEELE-JOHN: Well, I think it might be. I’m seeking to understand, in the department’s view, what the broad implications of a ‘do not travel’ order are.

Senator Wong: Don’t go. That’s a broad implication.

Senator STEELE-JOHN: Indeed, it is. Yes. But the practical implications for Australian citizens.

Senator Wong: There may well be insurance issues. Mr Gerard might be able to talk in the broad, but the point of the travel advice and my repetition of it and others is clear. We are saying, because of the volatile security situation, our advice is do not travel to Lebanon. Our advice is, if you are in Lebanon, you should consider leaving.

Ms Adams : I will just make a general statement that there are implications—you’re right—of a ‘do not travel’ designation. It’s used very sparingly. We’re well aware of the various implications. But the reason, as the minister has said many times, for moving to this in Lebanon is that, with the large number of Australians there and the limited options and likelihood of those options being reduced even further in the event of security concerns, it will be very hard for people to leave. So those in a position to leave, we’re giving the strongest indication that we can that the time to do that is now, not to wait to see what happens next week.

Senator STEELE-JOHN: Yes. I do understand that, Ms Adams. I guess the question in my mind is: all of the characterisations you’ve made in relation to Lebanon are totally accurate, but I struggle to see how they do not also apply to the State of Israel, given the current situation, and yet there hasn’t been ‘do not travel’ advice made in relation to that state.

Ms Adams : We do, as I’m sure you know, have ‘do not travel’ advice for Gaza Strip—

Senator STEELE-JOHN: Yes, of course.

Ms Adams : for border areas near and for West Bank. It depends on the security environments in each of those areas. Of course, they differ.

Senator STEELE-JOHN: Yes, but the Netanyahu government has declared a state of war and repeatedly has communicated very clearly to the international community that they are still receiving incoming rocket fire et cetera. That seems to be quite clearly an unsafe place for Australians to go, and yet they haven’t been subject to that piece of advice from the department.

Mr Gerard : Our travel advice for every location is under constant review. It’s a process that we undertake in consultation with other parts of the Australian government according to the risks to the safety of Australians.

Senator STEELE-JOHN: But don’t you see the disconnect there, with the rocket fire exchanges that exist between Hezbollah and the State of Israel along the border and the open state of war that the government of Israel is currently communicating to the international community is the reality on the ground, yet Lebanon is subject to a do-not-travel order, with all of its implications on Australians, and the State of Israel is not? Minister, doesn’t that seem strange to you?

Senator Wong: It’s not a political judgement.

Ms Adams : I think it’s not a political statement; it’s an assessment of the security situation.

Senator STEELE-JOHN: Well, that’s what it looks like to me.

Senator Wong: Hang on. That’s not fair. I don’t set it. I get advice from the department.

Senator STEELE-JOHN: But you get to choose whether you take that advice or not.

Senator Wong: It is a not a political assessment. It is a risk assessment. Officials undertake their assessment about travel advice, and they provide us with the advice about what we should do with travel advice.

Senator STEELE-JOHN: But you’re evacuating people from Israel. Isn’t that exactly an environment in which you’d say, ‘Don’t go there’?

Senator Wong: I think it’s ‘Reconsider your need for travel.’

Senator STEELE-JOHN: Yes. That’s below ‘Don’t travel,’ which you issued to Lebanon.

Ms Adams : That’s right.

Senator Wong: That was on advice, because that is what the assessment—

Senator STEELE-JOHN: And you made that decision. You decided to take that advice.

Senator Wong: Please stop. This is not a political decision.

Senator STEELE-JOHN: You are a politician.

Senator Wong: I am, and I’m also the minister, and I would be very surprised if anyone in this role would do anything other than take the advice of DFAT on the assessment for travel advice.

Link to Parliamentary Hansard