Senator Nick Xenophon – Estimates questions about two-state solution, aid budget for Palestine and the Geneva Convention

June 3, 2015

Questioned the implications of recognising Israel as a Jewish state in the context of a two-state solution, the Australian aid budget for Palestine, and the applicability of the fourth Geneva Convention to the Palestinian Territories.

Are you aware that Israel’s new Deputy Foreign Minister, Tzipi Hotovely, has stated that Israel wants to be recognised as a Jewish state and that it reserves the right to build settlements in the occupied Palestinian territories?

Whole interaction with Mr Peter Varghese (Secretary, DFAT), Mr Marc Innes-Brown (First Assistant Secretary, Middle East and Africa Division, DFAT), Senator George Brandis (Attorney-General), Mr Ewen McDonald (Deputy Secretary, DFAT) and Dr Greg French (Assistant Secretary, International Legal Branch, DFAT) during Senate Estimates (Foreign Affairs, Defence and Trade Legislation Committee, Foreign Affairs and Trade Portfolio).

Senator XENOPHON: Are you aware that Israel’s new Deputy Foreign Minister, Tzipi Hotovely, has stated that Israel wants to be recognised as a Jewish state and that it reserves the right to build settlements in the occupied Palestinian territories?


Mr Varghese : I might ask the relevant head of the Middle East and Africa Division to respond to that.


Mr Innes-Brown : Yes, I am aware of the statement.


Senator XENOPHON: The question is: are you aware that Israel’s new Deputy Foreign Minister, Tzipi Hotovely, has stated that Israel wants to be recognised as a Jewish state, and that it reserves the right to build settlements in the occupied Palestinian territories?


Mr Innes-Brown : As I said, Senator, I am aware that the statement has been made.


Senator XENOPHON: You are aware of it.


Mr Innes-Brown : I am aware of similar statements.


Mr Varghese : I think the answer to the question is: yes.


Senator XENOPHON: I am a slow learner—I think the Chair is giving me some gratuitous advice; thank you, Chair. What are the implications of Israel being recognised as a Jewish state?


Mr Innes-Brown : Our general position on Israel and the Palestinian territories has not changed. We believe there needs to be a two-state solution. That is the thrust of our policy.


Senator XENOPHON: But the question is: what are the implications of Israel being recognised as a Jewish state, given the Australian government’s policy that there ought to be a two-state solution? Would that go against that two-state solution?


Mr Innes-Brown : We have to have further discussions, in terms of whether that actually becomes operationalised in an Israeli policy position.


Senator XENOPHON: Are you saying it is not Israel’s policy, at the moment?


Mr Innes-Brown : It is not something they have conveyed directly to us.


Senator XENOPHON: Does the Commonwealth government of Australia have a view on whether Israel ought to be recognised as a Jewish state, as suggested by Israel’s deputy foreign minister?


Senator Brandis: Senator Xenophon, the policy of the Australian government, as you know, is to recognise the state of Israel and to support the two-state solution. I am advised that the Minister for Foreign Affairs has not addressed the statement that you have quoted from the senior Israeli politician, and really there is nothing, I think, usefully to add by way of commentary on it.


Senator XENOPHON: So, Attorney, you cannot at this stage—


Senator Brandis: I think you are raising a false issue.


Senator XENOPHON: That is a bit offensive.


Senator Brandis: Australia recognises the state of Israel and we support the two-state solution.


Senator XENOPHON: Attorney, that is somewhat offensive.


Senator Brandis: We have not addressed or commented on the statement that you have—


Senator XENOPHON: Please withdraw that comment that I am ‘raising a false issue’. Will you withdraw that?


Senator Brandis: I think it is a false issue. I am not questioning your motives, Senator, but I do think it is a false issue. It has not arisen.


Senator XENOPHON: But can we support a two-state solution and also recognise Israel as a Jewish state?


Senator Brandis: This issue has not arisen.


Senator XENOPHON: Do we support the International Court of Justice and the international consensus? You are saying that Australia still supports the International Court of Justice position in relation to the two-state solution.


Senator Brandis: I am not going to get involved in a hypothetical debate with you about a statement on which the Australian government has made no comment. Australia supports the state of Israel, and we support a two-state solution.


Senator XENOPHON: And Australia has no position on the statements made by senior members of the Israeli government?


Senator Brandis: I am not familiar with the statement, and I am told that the foreign minister has not had anything to say about that statement.


Senator XENOPHON: Okay, let us move to something that can clearly not be hypothetical. What has the cut in the aid budget to the Palestinian territories been, Mr Varghese? I want to acknowledge that, having been to Palestine last year and to Israel at my expense, I indicated that there was some terrific work that AusAID was doing with Palestinian farmers in agricultural projects which were actually transforming lives, and I want to congratulate the Australian government for providing that aid. But there has now been a cut, hasn’t there, to the Palestinian territories?


Mr Varghese : Thank you for those comments, Senator. I will ask Mr Innes-Brown to go through the details of the aid program.


Mr Innes-Brown : This year, 2014-15, the total of our aid to the Palestinian territories will be $68.5 million; $56.5 million of that is development—


Senator XENOPHON: You will have to speak up. I am competing with the coffee machine—


Mr Innes-Brown : Sorry about that.


Senator XENOPHON: or the water boiler or whatever the hell it is, sorry—just speak up.


Mr Innes-Brown : This financial year, the total amount of money in aid that will go to the Palestinian territories is $68.5 million. Of that, $56.5 million is development assistance, and there was an additional $12 million in humanitarian funds.


Senator XENOPHON: How does that compare with last year, the previous year?


Mr Innes-Brown : This amount of money is the biggest amount of money we have given.


Senator XENOPHON: But in the context—and I have written to the foreign minister about this; perhaps either you or Mr Varghese can assist on this—there has been the devastation of Gaza, in terms of the increased humanitarian assistance, the reconstruction effort, that is required. I have received complaints here from constituents with links to Palestine about aid getting through and even things as simple as cement getting through to reconstruct Gaza. Has the Australian government been aware, has your department been aware, of difficulties in getting genuine humanitarian reconstruction material through to Gaza because of any obstacles placed by the Israeli military?


Mr Innes-Brown : In our general assessment, the reconstruction in Gaza has been slow after the conflict last year, but there are a range of factors there. The first one is that the Palestinian Authority has not been able to lead the process because Hamas is still in control. In addition, there is obviously scrutiny of materials going in because Israel understandably has security concerns about dual use items. Another issue about the reconstruction is that donors have only paid 26 per cent of the contributions they pledged at the Cairo conference. However, I am advised that, with the assistance of UNRWA, about 60,000 families, almost half the case load of the displaced refugee families, have been able to repair their damaged homes.


Mr McDonald : Just adding to that: in terms of the humanitarian budget going forward into 2015-16, that has largely been preserved at its current rate, so it will be $328.9 million, and the emergency fund will still be at $120 million, so there is an opportunity going forward as well to continue that.


Senator XENOPHON: But you understand the argument: shouldn’t the aid money either be increased or at least remain static, due to the humanitarian situation in Gaza? How much of that was actually for Gaza reconstruction?


Mr Innes-Brown : We provided $15 million in the aftermath of the conflict. Very recently, we gave another $5.7 million to UNRWA to help with reconstruction needs as part of their appeal.


Senator XENOPHON: Can I just ask the department or indeed the Attorney: in relation to the fourth Geneva Convention—that is, the protection of civilian persons in times of war—is it the government’s view that the fourth Geneva Convention applies in the occupied Palestinian territories, including East Jerusalem?


Mr Varghese : I may ask our acting senior legal adviser to address that question.


Dr French : The question of the application of the fourth Geneva Convention relative to the protection of civilians in armed conflict is one that needs to be taken on the facts at the time.


Senator XENOPHON: So which time are we talking about? I am talking about now. Does the fourth Geneva Convention apply?


Dr French : The government is in receipt of legal advice on this matter. Without going into any details of the legal advice provided to the government with respect to this question, it is clear that historical facts exist that the territories were occupied in the 1967 war and have continued to be occupied.


Senator XENOPHON: When was that legal advice provided in respect of the fourth Geneva Convention and the occupied Palestinian territories?


Dr French : I do not have the exact details of that—


Senator XENOPHON: Recently, within the last year or two, or older than that?


Dr French : There has been relevant advice provided on a number of occasions—not in, I believe, the last 12 months but over the course of the last several years on a few occasions.


Senator XENOPHON: The gist of that advice is the view that the fourth Geneva Convention does or does not apply to the occupied Palestinian territories, including East Jerusalem?


Dr French : Beyond what I have generally said—


Senator XENOPHON: You have not said much—respectfully.


Dr French : I believe that it goes to the issue of legal advice provided to government, and I would need to defer to the minister.


Senator XENOPHON: Perhaps I could ask the Attorney. Maybe I will just move on; I know the Attorney is preoccupied at the moment.



Senator XENOPHON: Mr Varghese, I am going to follow up on the issues that I asked about the fourth Geneva convention, and Australia’s view as to the applicability of the fourth Geneva convention in respect of the occupied territories in Palestine and East Jerusalem. I seek leave, Chair, to table a document I have obtained pursuant to the Archives Act, which is a Foreign & Commonwealth Office legal opinion dated 5 October 1971, in relation to this issue. It is a declassified document.

CHAIR: Do the minister and the secretary have a copy of that?


Senator XENOPHON: No; but I have a couple of copies here.


CHAIR: Thank you.


Senator Brandis: This is a brief prepared by the Commonwealth and Foreign Office.


Senator XENOPHON: Yes, it is.


Senator Brandis: On 5 October 1971.


Senator XENOPHON: Yes.


Senator Brandis: And—


Senator XENOPHON: If I could take you to annexure B—and can I assure the committee, and assure you, Attorney, that it is a declassified document that was obtained pursuant to our Archives Act.


Senator Brandis: Yes.


Senator XENOPHON: If I could take you to annexure B, headed ‘the applicability to the occupied territories of the fourth Geneva convention relative to the treatment of civilian persons in time of war’. Before I go to the specific passage that I wish to refer to, my understanding from the declassified documents is that this was a document that the Australian government sought, in forming its own opinion as to the applicability of the fourth Geneva convention to the occupied territories and to East Jerusalem. Can you confirm that, Mr Varghese—whether it was relied on?


Mr Varghese : Well, no I can’t Senator. You are referring to a document that goes back to 1971. I am not sure


Senator XENOPHON: That doesn’t mean it is not a good one!


Mr Varghese : No; I am not casting any judgements on the merits of the document! I am not sure when we would have drawn on it, if we have drawn on it, in the period between 1971 and now. So no; the short answer is I cannot.


Senator XENOPHON: Could you take on notice whether the Australian government did draw on that document in reaching its own conclusions as to its own legal advice as to whether the fourth Geneva convention applied to the occupied territories?


Senator Brandis: Well, just a moment, Senator Xenophon. There are two problems with that question. First of all, it seems to be a question about the sources, at least, of legal advice, and therefore a question about legal advice, of the Commonwealth.


Senator XENOPHON: Not necessarily.


Senator Brandis: It seems to.


Senator XENOPHON: But not necessarily.


Senator Brandis: But, secondly, there is a relevance issue here. This document is 44 years old. We are considering the budget estimates of 2015-16. And, allowing for the fact that a great deal of latitude is allowed in Senate estimates hearings, questions must bear some relationship at least to the activities of the Australian government in 2015-16, and I am struggling to understand how a document of historical interest—of some 45 years’ age—could bear any relevance—


Senator XENOPHON: It is 44 years. Don’t be ageist!


Senator Brandis: of 44 years of age, from 5 October 1971—could bear any relevance at all to the DFAT appropriations in the 2015-16 budget.


Senator XENOPHON: Chair, is that an objection? I am happy to respond to the Attorney’s objection, if that is an objection.


CHAIR: I will be guided by the minister as to whether he regards it as an objection.


Senator Brandis: Well, it is not really an objection. Indeed, strictly speaking, I am not sure that I can take objections. In saying that we will take this question on notice, which we have done, I am foreshadowing that it seems to me highly unlikely that we will be able to have anything to say about this. As I say, this is of historical interest only.


Senator XENOPHON: Just for the record, firstly, the position as to whether Australia considers that the Fourth Geneva Convention applies to the occupied territories in East Jerusalem is a matter of current import. It affects issues of our relationships and conduct in that region, depending on what the position of the Australian government is in relation to the applicability of the Fourth Geneva Convention. These are matters that are directly related to budget estimates in 2015.


Senator Brandis: Well, that may well be—


Senator XENOPHON: I am sorry, Attorney, I have not finished. I was courteous enough to listen to you. Do you mind?


Senator Brandis: Well, Senator—


Senator XENOPHON: You will not let me finish, will you? You are very discourteous, Attorney.


Senator Brandis: I am happy to let you finish—


Senator XENOPHON: You have just shown that you are not.


Senator Brandis: but, in order to shorten things, I was simply going to make the point that what you asked about was not policy. What you asked about was a decision, and whether or not this document was one of the sources on the basis of which a decision was made. I was going to invite you to nominate when it is that you say that the relevant decision that you want to know about was made?


Senator XENOPHON: That was not my exclusive point. I suggest that Australia’s position in terms of the applicability of the Fourth Geneva Convention to the occupied territories is still relevant today. The question I would like to put you, in addition to whether this document was relied on, is this: you say that you will not release the legal opinion of the Commonwealth in respect of the applicability of the Fourth Geneva Convention to the occupied territories. Is that the position of the Australian government?


Senator Brandis: It is the position of the Australian government that we do not release legal advice. There are occasions when exceptions are made to that general rule, but ordinarily that is the general rule.


Senator XENOPHON: Respectfully, Attorney, do you see the irony of the fact that a document that appears to have been relied on by the Australian government in reaching their own legal opinion—


Senator Brandis: I do not—


Senator XENOPHON: I am sorry, I have not finished—is a document that has been declassified and is available for viewing by the Australian public under the Archives Act?


Senator Brandis: No, I see no irony in that whatsoever. As for your assertion that this document was relied upon by the Australian government—I do not know whether that is true or not.


Senator XENOPHON: It is a question to take on notice.


Senator Brandis: You have not asked that question, but you see—


Senator XENOPHON: I am asking that question now.


Senator Brandis: What is the question you are asking?


Senator XENOPHON: The question I am asking now is: was this document in any way relied upon by the Australian government in obtaining legal advice as to the applicability in the occupied territories of the Fourth Geneva Convention Relative to the Treatment of Civilian Persons in Time of War?


Senator Brandis: What I think you mean to say is, was the document relied upon in the preparation of the legal advice which you say was sought. I do not know whether legal advice was sought; if it was sought, I do not know when it was sought. The document to which you referred is 44 years old. We have not identified any relevant decision by the Australian government which may or may not have been informed by legal advice that may or may not have been taken which, if it was taken, may or may not have referred to this document. But on any construction of your inquiry, I continue to have grave difficulties in seeing how this bears upon the 2015-16 budget estimates, albeit that the policy issue may well be a present issue. But you now do seem to be confining your inquiry to whether or not a decision was made. If that is the case, I assume, given the age of the document, that that is a decision that would have be made many years ago.


Senator XENOPHON: I respectfully suggest that you are seeking to confine my inquiry, and I am grateful to you for pointing that out in terms of the context of how this document was used. I acknowledge that, and I am genuinely grateful to you for that. Do you acknowledge, though, that the British government seems to have no difficulty in having its legal advice, its legal opinion in respect of the occupied territories and the applicability of the Fourth Geneva Convention released, but the Australian government does not?


Senator Brandis: I do not know that this is legal advice. It is described as a brief prepared by the Foreign & Commonwealth Office, which I have not read, to which three annexures are annexed. You have referred to one, which, as you have said, is called, ‘The applicability to the occupied territories of the Fourth Geneva Convention Relative to the Treatment of Civilian Persons in Time of War’. The annexure to which you have referred is three pages long. It does not quote any authorities; it does not appear to refer to any decision of the International Court of Justice; it does not appear to quote any scholarly texts about the topic. So I am not sure that this is legal advice to the British government. I would have to read it; but it may not be.



Senator XENOPHON: I have moved on from that question. Attorney, does the Australian government have a view as to whether the fourth Geneva convention applies to the Occupied Territories?


Senator Brandis: I will ask the foreign minister about that.


Senator XENOPHON: If you could take that on notice, I would be satisfied with that. If so, what is that view? Finally, Mr Varghese, a matter that is of less controversy, I hope: has the department received any reports of difficulties of Palestinians who have obtained scholarships in Australian universities in leaving Palestine to study here, including their spouse or family members who have been allowed to accompany them as part of the scholarship? If you could take that on notice I would be very grateful.


Mr Varghese : I am happy to take it on notice. Are you referring to Australian government scholarships?


Senator XENOPHON: I am referring to scholarships for Australian universities, so you could include both Australian government scholarships and any other scholarships offered by Australian universities.


Mr Varghese : I am happy to take that on notice.


Senator XENOPHON: Presumably that will be within your purview. Attorney-General, you will be delighted to know that I will put the rest of the questions on notice.

Link to full Hansard transcript.