Senator Nick Xenophon – Estimates questions about the status of Jerusalem and children in Israeli military detention

October 26, 2017

Questioned Australia’s vote at the UN General Assembly on the peaceful settlement of the question of Palestine and the status of Jerusalem, and asked about Australia’s position on the detention of Palestinian children in Israel.

I’ve got a question about Australia’s forthcoming vote at the UN General Assembly on the peaceful settlement of the question of Palestine. What will Australia’s vote be in 2017, noting that in 2016 Australia abstained and 153 countries voted in favour?

Whole interaction with Senator George Brandis (Attorney-General), Mr Matthew Neuhaus (Acting First Assistant Secretary, Middle East and Africa Division, DFAT) and Mr James Larsen (Senior Legal Adviser, Legal Division, DFAT) during Senate Estimates (Foreign Affairs, Defence and Trade Legislation Committee, Foreign Affairs and Trade Portfolio).

Senator XENOPHON: I just have some questions to ask in respect of Palestine—and, Ms Adamson, if they have already been traversed, I’m sure you’ll tell me to save time. I’ve got a question about Australia’s forthcoming vote at the UN General Assembly on the peaceful settlement of the question of Palestine. What will Australia’s vote be in 2017, noting that in 2016 Australia abstained and 153 countries voted in favour?

 

Mr Neuhaus : As things stand—but of course one has to always keep an eye on the wording of resolutions—I would expect we would take a position consistent with the one we did last year.

 

Senator XENOPHON: An abstention?

 

Mr Neuhaus : As things stand.

 

Senator XENOPHON: Similarly, in the vote on the status of Jerusalem the General Assembly stressed that: ‘… a comprehensive, just and lasting solution to the question of the City of Jerusalem should take into account the legitimate concerns of both the Palestinian and Israeli sides …’ In 2016 Australia abstained and 149 countries voted in favour. Do you expect an abstention again?

 

Mr Neuhaus : We will have to look at the text of the resolution this year, but we see no shift in our position.

 

Senator XENOPHON: What recent assessment has the Australian government made of the compatibility with international law of the arrest and transfer of children from the occupied Palestinian territories to Israel, noting the British government has stated in its parliament: ‘We are clear that Israel has legal obligations as an Occupying Power with respect to the Occupied Palestinian Territories under the Fourth of the Geneva Conventions of 1949. This includes Article 49, which prohibits deportation of protected persons from the occupied territory and Article 76, providing that protected persons convicted of offenses shall be detained and serve their sentences within the occupied territory.’

 

Mr Neuhaus : I would have to defer to our senior legal advisor on any legal aspects that you have raised there.

 

Senator XENOPHON: But does Australia have a different assessment? That’s the obvious question to follow that through.

 

Mr Larsen : As you would be aware, it’s customary practice not to reveal the contents of legal advice or provide legal opinions.

 

Senator XENOPHON: Does Australia have a different assessment to that of the British government?

 

Mr Larsen : Australia has its own assessment.

 

Senator XENOPHON: You won’t tell us what that assessment is?

 

Mr Larsen : I think these issues have been traversed in Senate estimates on previous occasions. It’s not the practice to reveal the contents of legal advice to the government.

 

Senator XENOPHON: Right. But what I’m trying to understand is that if the British government is happy to state its understanding of the legal position publicly, what are the obstacles to the Australian government doing so too?

 

Senator Brandis: Mr Larsen has—

 

Senator XENOPHON: It’s not an unreasonable question, Attorney.

 

Senator Brandis: Mr Larsen has accurately stated what the position is in relation to legal advice. You have referred to some advice to the British government. What the British government may choose to do with its legal advice is a matter for it, but that does not affect the way in which the Australian government appreciates or interprets its obligations to maintain confidentiality in relation to legal advice, and the government intends to do so, which is the orthodox practice.

 

Senator XENOPHON: So we won’t know what the legal advice is in respect of—

 

Senator Brandis: No.

 

Senator XENOPHON: That’s something that won’t be disclosed?

 

Senator Brandis: As Mr Larsen has said, legal advice is, as a general rule, not disclosed. There are occasions when governments for particular reasons may make exception to that general principle. This is not such a case.

 

Senator XENOPHON: Well, let’s go to this issue: what representations has the Australian government made to its Israeli counterparts on the transfer of protected persons from the West Bank to prisons inside Israel? Have there been any representations made?

 

Mr Neuhaus : I would have to take that specific one on notice, but we have made a wide range of representations on issues, which I referred to earlier in evidence before this Senate inquiry.

 

Senator XENOPHON: The British government has stated in the parliament: ‘We regularly raise our concerns about the treatment of Palestinian prisoners with the Israeli authorities, including routine detention of Palestinians from the West Bank in prison inside Israel. We are particularly concerned about the detention of Palestinian children in Israeli prisons. We welcome recent improvements made by the Israeli authorities, including increasing the age of majority from 16 to 18 years old. However, we remain concerned at the number of Palestinian minors held in Israeli detention.’ Does the Australian government have similar concerns to those of the British government?

 

Mr Neuhaus : We have made representations on similar issues, as advised to the last Senate estimates, on issues relating to detainees.

 

Senator XENOPHON: Attorney, on your visits to Israel have you raised these issues at all, as Attorney?

 

Senator Brandis: Not in any official way. I have been party to conversations about the matter. But I couldn’t say that—nor is it my place—to represent to foreign governments the foreign policy of the Australian government.

 

Senator XENOPHON: When was this last raised in a general way by you in Israel?

 

Senator Brandis: I was last in Israel at the end of 2015, I think. No, at the end of 2014, I’m sorry.

Link to full Hansard transcript.

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