Senator Paul Scarr – Estimates questions relating to government legal advice relating to admitting Palestine to the UN

Photo of Senator Paul Scarr
May 31, 2024

The first question I’ve got is: What was the department’s role in terms of advising the government in relation to this General Assembly resolution regarding Palestine? What role did the department play in relation to the resolution?

Senator SCARR: I’ll associate myself with the chair’s remarks, so thank you. It’s a Friday night, and we really do appreciate it. I’m going to table a document, which is the resolution passed by the General Assembly of the United Nations on 10 May 2024. It’s entitled ‘Admission of new members to the United Nations’, so can someone come forward in relation to that matter. I didn’t do international law at university, so I’ve been becoming an expert—but maybe not. The first question I’ve got is: What was the department’s role in terms of advising the government in relation to this General Assembly resolution regarding Palestine? What role did the department play in relation to the resolution?

Mr Newnham : Thank you for your comments, Senator, and the comments from the Chair. That was a matter lead by DFAT.

Senator SCARR: Right. It was led by DFAT—I note that—but, if you look at the resolution itself, the preamble has a comment on page 2 that says:

Stressing its conviction that the State of Palestine is fully qualified for membership in the United Nations in accordance with Article 4 of the Charter …

And then there’s what I will call an operative provision, clause 1, which says the assembly:

Determines that the State of Palestine is qualified for membership in the United Nations in accordance with Article 4 of the Charter of the United Nations and should therefore be admitted to membership in the United Nations …

Now, there’s a key legal question involved in both that recital, in the first instance, and then in the operative revision, namely whether or not Palestine does meet, as a matter of international law, the qualifications required for membership in the United Nations in accordance with article 4 of the charter. Do you accept that that is a material question of international law?

Mr Newnham : I’m not sure I can answer the second part of that, but perhaps what I can tell you is, as I said before, DFAT is the lead on this work. We have any number of engagements with them on a range of matters. What I can say is they would be best placed to speak to the terms of the document you provided to us. We would not be able to provide a view on the legal implications or otherwise of that clause. What I can say is—in fact, I might stop there, unless colleagues wish to add anything.

Senator SCARR: There’s another key question of international law, in that the position of DFAT, in terms of policy, is one question. I’m focused on the role of the international law division of the Attorney-General’s Department. I just want to emphasise that. There’s a question which arises as a result of this resolution. I’ve had a look at article 4 of the Charter of the United Nations and the requirements of a state to become a member of the United Nations. It requires both a vote of the general assembly and a vote of the security council. There’s a question as to whether or not one needs to be before the other, and that is a question of international law. Those are at least two questions of international law, namely (a) whether or not Palestine is fully qualified in accordance with article 4 of the charter to become a member state of the United Nations, and (b) whether or not the process thus far undertaken of the general assembly resolution, following the security council originally not agreeing with what the process is now—what is the consequence of this resolution? Those are two key questions of international law. I’ll craft the question this way: was the Attorney-General’s Department asked to give any international legal advice with respect to the effect of Australia supporting this resolution?

Mr Newnham : I can answer that. The answer is no. Based on our records, we have not provided legal advice on that matter or, indeed, the issues that you’ve raised. I would just point out that, of course, DFAT itself has an international law expertise and a body of officers that work there, including very closely from time to time with our international lawyers as well. So it’s not a suggestion that somehow, in the absence of the Attorney-General’s Department providing advice on these matters, there was none but rather that we did not play a role in this process.

Senator SCARR: Alright. Clearly, Mr Newnham, you recognise the fact that from time to time members of DFAT with specialist expertise in this regard coordinate closely with your team.

Mr Newnham : Yes.

Senator SCARR: I’ve got no doubt that the officers in the department are experts in this field. In this case, why wasn’t there any consultation in relation to such a significant resolution of this nature? That surprises me.

Mr Newnham : I’m very happy to ask colleagues to come in on what would be the normal course of engagement, but what I would say is, in the general, there is a great deal of coordination with DFAT, including the secondment of AGD officers to the Department of Foreign Affairs and Trade and vice versa. The expertise is really a shared government source. The second point I’d make here is, I think from time to time, AGD may give international law advice alone. It may do it in combination with foreign affairs and trade, or DFAT, may in fact, give international law advice itself. It really is a bit of a case by case basis. It depends on the issue. I wouldn’t necessarily draw a conclusion that there is a major gap or absence because the Attorney-General’s Department was not involved in this particular circumstance. But I’ll just check with Ms Sheehan.

Ms Jones : I might just add that AGD is generally the lead on matters before the ICJ. Other things that go to UN General Assembly resolutions, I think, have traditionally been a DFAT lead. Is that fair, Ms Sheehan?

Ms Sheehan : That’s correct. That was a similar point to what I was going to make. It’s not uncommon that, with the negotiation of the text of a resolution, where there are negotiations happening in the room and instructions being given to our embassies overseas about what language can be accepted, it would be common that DFAT would take the lead on those matters.

Senator SCARR: This is a follow-up question to make sure I cover this off. Were you consulted or involved at any time in relation to this resolution? I just want this on the record for the purpose of certainty in terms of the lead-up to the resolution and, perhaps, in terms of providing advice in the event that a resolution of this nature was put forward. Did you have any advance knowledge of the resolution or were you asked to advise on any drafts of the resolution? I’m casting the net wider to make sure that, as I understand your evidence, you had absolutely no involvement.

Ms Sheehan : We were aware that the resolution was being negotiated and being put to the General Assembly, but we were not asked for advice in relation to it.

Senator SCARR: How were you aware of that?

Ms Sheehan : I think it was a matter of public knowledge, from memory.

Senator SCARR: The reason I asked that question was I was trying to discern whether or not you’d been given formal notice by DFAT that this was occurring. And you were made aware through official channels, as opposed to any informal news channels.

Ms Sheehan : We may well have been aware from our attendance at meetings and our general engagement with DFAT. I couldn’t say whether it was through such meetings or public commentary.

Ms Jones : We can seek to take that on notice because it could be officers at a slightly more junior level who may have that knowledge. I think the central point that goes to your question about if we were asked to provide formal advice in relation to this matter is that our clear answer is no, we were not.

Senator SCARR: Secretary, I want to pursue a comment you made in the context of the next document I’m seeking to table, which is ‘Observations of Australia’, pre-trial chamber I, dated 16 March 2020. It’s in relation to the International Criminal Court. Go to paragraph 12 of that document, which is on page 7. I’ll read it for the purpose of the Hansard record:

The question of Palestinian statehood cannot be resolved prior to a negotiated peace settlement and therefore Australia’s position is clear: Australia does not recognise the ‘State of Palestine’. As such, Australia does not recognise the right of the Palestinians to accede to the Rome Statute. We note that Australia wrote to the United Nations Secretary-General on 6 February 2015 in terms consistent with this position. Australia considers that it does not have a treaty relationship with the ‘State of Palestine’ under the Rome Statute.

Was the department involved in the preparation of this submission?

Mr Newnham : I note it was 2020—that’s four years ago.

Senator SCARR: Sure.

Mr Newnham : We’re short of firsthand knowledge at the table. I think we’d have to take that on notice.

Ms Sheehan : My recollection was that the department was involved.

Ms Jones : I’d want to be certain of that. I think there’s someone here that might be able to assist.

Mr Clarke : The department was involved closely, with DFAT, in that matter.

Senator SCARR: This document, which is a submission to the International Criminal Court, places Australia’s position on record. It gives some legal commentary around that position in the context of the International Criminal Court and the Rome statute. The Attorney-General’s Department was liaising closely with DFAT in relation to this submission, which I can well understand. Given that history and background and given the continuation of the subject matter, namely the recognition of the State of Palestine, why wasn’t the international section of the Attorney-General’s Department involved in relation to the most recent UN resolution?

Ms Jones : I would revert to what Ms Sheehan said previously and to my comment that, on something like a UN General Assembly resolution, which is often done at post, DFAT—at post and also in Canberra—would be the lead.

Senator SCARR: Presumably you also liaise with DFAT if something is being driven at post. I’m assuming that doesn’t preclude the Attorney-General’s Department from engaging with DFAT.

Ms Jones : There are many occasions when we do engage with posts as well as Canberra; that’s correct.

Mr Clarke : Senator, if I may also assist: the secretary mentioned earlier a distinction between litigation matters and the matters you’ve just been referring to—the negotiation of General Assembly resolutions or resolutions before other international organisations. The document you’ve provided was informal proceedings before the International Criminal Court. Normally, with that sort of international litigation, the Attorney-General’s Department would play a more prominent role in that process—in the conduct of international litigation.

Senator SCARR: Okay. My time is going to come to an end very soon, so I might accelerate the questions. From the Attorney-General’s Department’s point of view, is the State of Palestine an independent state or not? Is it a state? What’s the position of the Attorney-General’s Department?

Ms Jones : Senator, we can’t provide advice on that here.

CHAIR: DFAT estimates is next week. You can come and ask questions then, as I’m sure many coalition senators will. We’ve got the international law group in front of us now. You can ask them questions about their processes or their functions, but don’t ask them for a view on Palestinian statehood.

Senator SCARR: I’m asking: what is the position at the moment, as a matter of international law, of the Attorney-General’s Department? What is the position, as a matter of the law and for the purposes of, for example, making a submission in relation to international legal proceedings in the nature of the submission that was made in 2020? What would you say in paragraph 12? What’s the position of the Attorney-General’s Department?

Ms Jones : You’re asking us to give legal advice and a legal position to the committee, and that’s not something that’s generally required of officials.

CHAIR: Come in here and ask DFAT about it when Senator Wong is at the table.

Senator SCARR: I’ve got a new subject matter, Chair. I don’t know if you want to share the call.

Link to Parliamentary Hansard