Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

The President has received the following letter from Senator Xenophon:

Pursuant to standing order 75, I propose that the following matter of public importance be submitted to the Senate for discussion:

The Abbott government's failure to acknowledge that the term 'occupied' in relation to the Occupied Palestinian Territories is an objective legal description of the status of those Territories.

Is the proposal supported?

More than the number of senators required by the standing orders having risen in their places—

The proposal is supported.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

At the outset, I wish to acknowledge the presence in the gallery of a number of members of the diplomatic corps here in Canberra today, which indicates the level of interest of many in the international community over this issue.

This matter of public importance in the Senate today arises as a result of a statement made on behalf of the Australian government by the Attorney-General on behalf of the foreign minister on 5 June 2014 in Senate estimates that:

The description of East Jerusalem as 'occupied …' is freighted with pejorative implications, which is neither appropriate nor useful.

I will now demonstrate conclusively why that claim is false and actually most unhelpful to the process of achieving a lasting peace in the Israel-Palestine conflict.

The term 'occupied' is an objective legal description of the status of the Occupied Palestinian Territories. According to the 1949 Geneva conventions and the 1907 Hague regulations, territory is considered occupied when it comes under the actual authority of the invading military. There are certain objective tests: (1) Has the occupying power substituted its own authority for that of the occupied authorities? Yes. It is a matter of fact that Israel's authority prevails in the Occupied Palestinian Territories. (2) Have the enemy forces been defeated, regardless of whether sporadic local resistance continues? Yes. It is a matter of fact that Israel defeated its military adversaries in the June 1967 war. (3) Does the occupying power have a sufficient force present to make its authority felt? Yes. It is a fact that Israel has sufficient force to make its authority felt. (4) Has an administration been established over the territory? Yes. It is a fact—a poignant fact—that even the Palestinian leaders who wish to enter or leave the occupied Palestinian territories cannot do so without permission from Israel. Even the Palestinian president cannot go to the United Nations in New York, or indeed to anywhere else in the world, without permission from Israel. (5) Has the occupying power issued and enforced directions to the civilian population? Yes. It is a fact that Israel has issued and enforced such directions. Indeed, Israel's highest court—the High Court of Justice—stated in paragraph 23 of its verdict in the case of Beit Sourik Village Council v The Government of Israel on 30 June 2004 that 'Israel holds the area in belligerent occupation'. Let me say that again: Israel's own highest court stated in 2004 that 'Israel holds the area in belligerent occupation'. I concede that here the word 'occupied' is 'freighted with implications', but to say they are pejorative is factually untrue and legally ignorant.

What are these implications in fact and in law? Here I turn to the landmark 2004 International Court of Justice advisory opinion on 'the legal consequences arising from the construction of the wall being built by Israel, the occupying Power in the Occupied Palestinian Territory including in and around East Jerusalem.' Note the words 'occupying' and 'occupied' used by the International Court of Justice. Australia is quite happy to accept the wisdom of the International Court of Justice when it comes to whales, but not, it seems, the Palestinians.

Let's see what the International Court of Justice said in its advisory opinion. It listed the rules and principles of international law which are relevant. First, article 2, paragraph 4, of the United Nations Charter:

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.

Second:

No territorial acquisition resulting from the threat or use of force shall be recognized as legal.

Third:

The principle of self-determination of peoples has been enshrined in the United Nations Charter and reaffirmed by the General Assembly.

The court observed that:

The existence of a "Palestinian people" is no longer in issue.

The court stated:

The Wall's sinuous route had been traced in such a way as to include within that area the great majority of the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem).

It noted that article 49, paragraph 6, of the Fourth Geneva Convention provides that:

The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies. That provision prohibits not only deportations or forced transfers of population such as those carried out during the Second World War but also any measures taken by an occupying power in order to organize or encourage transfers of parts of its own population into the occupied territory.

The International Court of Justice stated unambiguously that:

The Court concludes that the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law.

The court stated, in relation to the wall:

Its construction severely impedes the exercise by the Palestinian people of its right to self-determination, and is therefore a breach of Israel's obligation to respect that right.

It also stated:

The fact remains that Israel has to face numerous indiscriminate and deadly acts of violence against its civilian population. It has the right, and indeed the duty, to respond in order to protect the life of its citizens. The measures taken are bound nonetheless to remain in conformity with applicable international law.

In conclusion, the Court considers that Israel cannot rely on a right of self-defence or on a state of necessity in order to preclude the wrongfulness of the construction of the wall...

I now draw the Senate's attention to the fact that not one of the 15 judges on the International Court of Justice dissented from its findings. It is highly instructive that the US judge on the International Court of Justice, Thomas Buergenthal, described his conclusion as a 'declaration', not a 'dissent'. Judge Buergenthal was born in 1934 in Slovakia. He is a Holocaust survivor who was in the Auschwitz and Sachsenhausen extermination camps. He said:

… there is much in the Opinion with which I agree.

This remarkable individual and jurist went on to state:

I share the Court's conclusion that international humanitarian law, including the Fourth Geneva Convention, and international human rights law are applicable to the Occupied Palestinian Territory and must therefore be faithfully complied with by Israel. I accept that the wall is causing deplorable suffering to many Palestinians living in that territory. In this connection, I agree that the means used to defend against terrorism must conform to all applicable rules of international law and that a State which is the victim of terrorism may not defend itself against this scourge by resorting to measures international law prohibits.

Judge Buergenthal went on to state:

Moreover, given the demonstrable great hardship to which the affected Palestinian population is being subjected in and around the enclaves created by those segments of the wall, I seriously doubt that the wall would here satisfy the proportionality requirement to qualify as a legitimate measure of self-defence.

I draw to the Senate's attention the fact that the protective provisions of the 4th Geneva Convention applied from the moment the international armed conflict began on 5 June 1967. In the 1967 debates, Australia—through our representative to the United Nations, Sir Laurence McIntyre—voted for a General Assembly resolution calling for full Israeli withdrawal in accordance with the principle of the inadmissibility of acquiring territory by war. On the question of Jerusalem, the British Secretary of State for Foreign Affairs addressed the General Assembly in person. On 21 June 1967, he said:

… it follows from the words in the Charter that war should not lead to territorial aggrandisement.

He called on Israel not to take any steps in relation to Jerusalem which would conflict with this principle. In that same General Assembly debate, the United States voted for a resolution that stressed that, for a 'durable peace' to be achieved, 'one immediate, obvious and imperative step is the disengagement of all forces and the withdrawal of Israeli forces to their own territory'.

These statements are highly relevant to the meaning of UN Security Council Resolution 242, which was adopted unanimously by the UN Security Council and which our foreign minister says, paradoxically, we still support. Not a single member of the Security Council dissented from the principle of 'the inadmissibility of the acquisition of territory by war'. This international consensus means that there can be only minor and mutual territorial adjustments.

We already know, thanks to the so-called Palestine Papers—which are the biggest leak of secret documents in the history of the Middle East conflict—that a solution is already available. The Palestinian negotiating team in 2008 offered a formula where Israel would annex 1.9 per cent of the West Bank in the context of a land swap, allowing Israel to retain within its borders 63 per cent of the illegal settler population. We also know, according to the same leaks, that Israel's negotiating team turned down this offer. Australia, by adopting these rejectionist statements, has given comfort to the extremists and has weakened the position of the moderate and reasonable Israelis and Palestinians. We should instead encourage our great friend Israel to accept the generous offer made in 2008 so that we can have a real, lasting and durable peace in the Middle East.

The statement made by the Australian government on 5 June this year is not only wrong; it is factually untrue, legally ignorant and most unhelpful. (Time expired)

Scott Ryan (Victoria, Liberal Party, Parliamentary Secretary to the Minister for Education) Share this | Link to this | Hansard source

I have a statement to read on behalf of the government.

The Australian government remains a strong supporter of the Middle East peace process. We maintain our unreserved support for a just and lasting two-state solution, with Israel and a Palestinian state existing side-by-side in peace and security within internationally recognised borders. We continue to urge both sides to resume direct negotiations and stand ready to assist the peace process.

The Australian government has repeatedly acknowledged the historical fact of Israel's occupation of East Jerusalem during the 1967 war. We have repeatedly reaffirmed our commitment to UN Security Council resolutions on the issue, adopted over many years, starting with Resolutions 242 and 338.

The foreign minister had a productive morning tea with Islamic ambassadors this morning to discuss economic opportunities in the Middle East region. The Palestinian head of delegation and the Moroccan ambassador, as Dean of the Arab Diplomatic Corps, both took the opportunity to thank the minister for the government's position on the Middle East peace process.

Statements made by the Attorney-General in Senate estimates on 4 June and 5 June 2014 were a restatement of existing Australian government policy. They were made in his capacity as the Minister representing the Minister for Foreign Affairs in the Senate. In particular, the statement which the Attorney-General read on 5 June was a statement prepared in conjunction with the foreign minister and the Secretary of the Department of Foreign Affairs and Trade and was given with the foreign minister's explicit authorisation. As is apparent from the statement, it begins by reaffirming the longstanding policy of the Australian government's support for the two-state solution. Claims in the media that the Attorney-General's statements were not made with the authority of the foreign minister are completely inaccurate.

There has been no change to the Australian government's position on the legal status of the Palestinian territories. This has been made clear by the Prime Minister, the foreign minister and the Attorney-General over the last few weeks.

But we do not consider it helpful to engage in debates over legal issues nor to prejudge any final status issues that are the subject of peace negotiations. A two-state solution will be achieved through diplomatic negotiations, not legal interpretations of the issue. It has been the clear practice of Australian governments, both Liberal and Labor, over many years to refer to East Jerusalem by its geographic name.

I call upon Senator Xenophon to join the government and the ALP in using geographic names to ensure Australia's support for the all-important peace process is not derailed by political games.

The attempts by the Greens and Senator Xenophon to make political mileage from a sensitive and important issue are deplorable, particularly in the context of current developments, including the kidnapping of three young Israelis and the widening conflict in Syria and Iraq.

Glenn Sterle (WA, Australian Labor Party) Share this | Link to this | Hansard source

Do you have a point of order, Senator Xenophon?

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I have just been accused, firstly, of political mileage and of linking it to the deplorable kidnapping of three young Israeli students. I ask Senator Ryan to withdraw that. It is disgraceful on the part of Senator Ryan. You are linking me to that. That is outrageous.

Scott Ryan (Victoria, Liberal Party, Parliamentary Secretary to the Minister for Education) Share this | Link to this | Hansard source

I withdraw.

Anne Urquhart (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

Can I begin by recognising the presence of the Palestinian ambassador and other ambassadors here in the gallery this evening.

I rise to speak on this matter of public importance. If there is one word to describe the deliberate actions of Senator Brandis, Ms Bishop and the Abbott government on this issue, and to be quite frank on most issues, that word would be perverse. Perverse can be defined in two ways: to show a deliberate and stubborn desire to behave in a way that is unreasonable or unacceptable; or, to be contrary to the accepted or expected standard or practice. It is my view that both definitions apply to Senator Brandis, Ms Bishop and the Abbott government.

On 5 June 2014, Senator Brandis made a prepared statement to a Senate estimates committee explaining his comments from the night before—this time, though, with the foreign affairs minister's authority. I quote Senator Brandis's key sentence:

The description of East Jerusalem as 'occupied' East Jerusalem is a term freighted with pejorative implications, which is neither appropriate nor useful.

This government displayed a deliberate and stubborn desire to promote its opinions on the terminology and legality of the occupied territories.

The clear response from the international community was that this opinion was both unreasonable and unacceptable. The Organization of Islamic Cooperation's Council of Foreign Ministers strongly condemned the Australian government for refusing to refer to East Jerusalem as occupied. The council, which met late last week in Saudi Arabia, blasted 'the orientation of the Australian government not to describe the city as occupied'. The council called on the Australian government to 'respect its commitments under international law', and urged member states 'to condemn such illegal positions and take necessary measures to respond to them'.

The council left open the possibility of a boycott on Australia's multi-billion-dollar trade to the Middle East. On 19 June 2014, the foreign minister met with a large delegation of ambassadors concerned by the apparent change in terminology and policy of the Australian government. The foreign minister's statement after the meeting read:

At this meeting I provided a letter re-affirming that there has been no change in the Australian Government’s position on the legal status of the Palestinian Territories, including East Jerusalem.

Our position is consistent with relevant UN resolutions adopted over many years, including UN Security Council Resolutions 242 and 338.

UNSC resolution 242 directly refers to occupied territories. If this government is in agreement with the international community on this issue, as the foreign minister claims, it should also be in agreement with the international community on the terminology used, which is that it is entirely appropriate—not pejorative or tendentious, as Senator Brandis said during Senate estimates—to refer to East Jerusalem, the West Bank and the Gaza Strip as occupied territories.

I think it is clear that the Abbott government fulfils the first definition of perverse. This government was also clearly acting in a manner contrary to the accepted or expected standard or practice. I refer the Senate to House of Representatives Hansard on 5 February 2013. On this day, then shadow minister for foreign affairs and trade, Ms Bishop, did something completely out of character. During question time in the House of Representatives, she asked a question about foreign affairs. The problem with the question was that she did not ask it of the Minister representing the Minister for Foreign Affairs at the time. She chose to ask the newly appointed Attorney-General. Her motives are hers to explain. Her question was:

… does the Attorney-General agree with the foreign minister that the settlements on the West Bank are illegal under international law?

The question was ruled out of order in that the then Attorney-General did not represent the then foreign affairs minister in the House of Representatives. First and foremost I would like to acknowledge that directly questioning the Attorney-General on this matter is not common practice and is an example of how the coalition do not appear to take matters of foreign policy very seriously. Furthermore, it is the height of hypocrisy for Ms Bishop to have found it acceptable to ask such questions while in opposition, but within months of her ascension to the role of Australian Minister for Foreign Affairs, she said:

I would like to see which international law has declared them illegal.

I wonder what answer Ms Bishop had hoped to get from her question of the then Attorney-General. Did Ms Bishop want the then Attorney-General to confirm the then foreign affairs minister's position, or was Ms Bishop misusing the standing orders to seek to create a wedge between senior ministers of the previous government? Hansard records that Ms Bishop's question of 5 February was her first on this topic in the 43rd Parliament. A week later, on 12 February 2013, Ms Bishop lodged two questions on notice, one to the then Attorney-General, and one to the then Minister for Trade in his capacity as Minister representing the Minister for Foreign Affairs.

The question to the then Attorney-General read:

Can he indicate whether the former Attorney-General (or his department) received a request prior to 18 January 2013 from the Minister for Foreign Affairs (or his department) for advice on the legal status of Israeli settlement on the West Bank; if so, did the then Attorney-General advise that all settlements are illegal under international law, as stated in the AUKMIN2013 Communique.

The then Attorney-General's response was simply:

Neither the Attorney-General nor the Attorney-General's Department have received a request from the Minister for Foreign Affairs (or his department) to provide advice on the legal status of Israeli settlement on the West Bank.

The first question from Ms Bishop to the then Minister for Trade read:

Prior to 18 January 2013, did the Minister seek advice from the International Law Office within the Attorney-General's Department on the legal status of Israeli settlements on the West Bank.

To which the then Minister for Trade responded:

No. Consistent with the Legal Services Directions 2005 (Cth), the Minister for Foreign Affairs sought legal advice from the Department of Foreign Affairs and Trade.

The second question from Ms Bishop to the then Minister for Trade read:

What legal advice is the basis for the statement made in the AUKMIN2013 Communique, that 'All settlements are illegal under international law …'

To which the then Minister for Trade responded:

It is the widely held view of the international community that Israeli settlements in the Palestinian Territories contravene international law. This is reflected in, for example, the 2004 Advisory Opinion of the International Court of Justice on the Legal Consequences of the Construction of a Wall on Occupied Palestinian Territories and resolutions adopted by the United Nations General Assembly and the United Nations Security Council.

The final question from Ms Bishop to the then Minister for Trade read:

Did the Minister give the United States prior notification of the intention to include in the Communique, a call on its government to take a more active role in the Israeli/Palestinian peace process; if so, how much notice was provided.

To which the then Minister for Trade responded:

Yes. The Minister's Office advised the US Embassy on 18 January 2013.

Given the written answer to the second question on notice that Ms Bishop received from the then Minister for Trade, representing the Minister for Foreign Affairs—

John Hogg (President) Share this | Link to this | Hansard source

Order! Pursuant to the order of the Senate agreed on 15 May 2014, the Senate will now move to valedictory statements.