Pearls and Irritations

In November 2022, I brought a Freedom of Information (FOI) request for the Australian Government to disclose the basis of its non-acceptance of the reports that apartheid exists in Israel. Last week, DFAT rejected the request on the risible basis that to process it would “unreasonably divert the department’s resources.” 

I refer to my earlier article, Australia must clarify Israel’s status as an apartheid State published in Pearls and Irritations on 3 November 2022.

The theme of the article was the possibility of Australia being an accomplice in the perpetration of a crime, i.e., the crime of apartheid. It was noted that the Foreign Minister, Penny Wong, “is on record as asserting that Australia does not accept the various reports to the effect that Israel is an apartheid State”. The basis of the non-acceptance was questioned and I floated consideration of a Freedom of Information Act (FOI) application. I concluded the article with a call to the Government to disclose the basis of its non-acceptance of the reports that apartheid exists.

This follow up is to inform the reader that an FOI application was brought – on 8 November. It was directed to the Department of Foreign Affairs and Trade (DFAT) and sought the following:

1. Any report emanating from DFAT of or concerning the question of Israel practicing apartheid in Israel or the Occupied Territories.
2. Any documentation created by DFAT or any subsidiary or agent thereof and addressing reports by Human Rights Watch and/or Amnesty International whereby each organisation found Israel to be committing the crime of apartheid in Israel and the Occupied Territories.
3. Any document received by DFAT from a third party of or concerning the question of Israel practicing apartheid in Israel or the Occupied Territories.
4. Any document received by DFAT from a third party addressing reports by Human Rights Watch and/or Amnesty International whereby each organisation found Israel to be committing the crime of apartheid in Israel and the Occupied Territories.

The Act allows 30 days for a response. On 28 November DFAT gave notice of an intention to refuse access to the documents concerned. The reason given was that “processing the request as it currently stands would substantially and unreasonably divert the department’s resources from its other operations”. DFAT invited the limiting of the scope of the request to overcome the asserted problem.
On the same day I responded and took up the opportunity to limit the request. The new request was this:

1. Any report post 1 April 2021 emanating from DFAT of or concerning the question of Israel practicing apartheid in Israel or the Occupied Territories.
2. Any documentation post 1 April 2021 created by DFAT or any subsidiary or agent thereof and addressing reports by Human Rights Watch dated 27 April 2021, (hereafter ‘the Human Rights Watch report’) and/or Amnesty International dated 1 February 2022, (hereinafter ‘the Amnesty International Report’) whereby each organisation found Israel to be committing the crime of apartheid in Israel and the Occupied Territories.
3. Any document post 1 April 2021 received by DFAT from a third party of or concerning the question of Israel practicing apartheid in Israel or the Occupied Territories.
4. Any document received by DFAT from a third party addressing the Human Rights Watch report and the Amnesty International report whereby each organisation found Israel to be committing the crime of apartheid in Israel and the Occupied Territories.

DFAT responded on 29 November advising that the original 30 days response time, i.e., 8 December, would be honoured.

On 7 December DFAT forwarded its decision which was to the same effect as earlier, namely “that processing the request would require a substantial and unreasonable diversion of the department’s resources”. The Acting Director of the FOI Section of DFAT mused, however, as an aside, that I might consider confining my request to only parts 1 and 2 of my request, noting that parts 3 and 4 “still captures a large volume of documents”.

On the same day – 7 December – I sought an internal review of the decision. The request for review was acknowledged and it was noted that a new 30 day period commenced, expiring on 6 January 2023. When making submissions for the review the following points were emphasised:

• the issue of Palestine is very much one of public importance, particularly given the resolutions adopted in the last two ALP national Conferences, in 2018 and 2021, that an incoming Labor government move to recognise Palestine at the earliest opportunity;
• that a sensible interpretation of the request could not result in the volume of material being too large – how many reports could the Minister have obtained on the Human Rights Watch and Amnesty International reports?;
• if there is a genuine problem re parts 3 and 4, what is to prevent a response to Parts 1 and 2 alone?

On 6 January 2023, at or about 3.00pm, Adelaide time – in other words, an hour or so before the deadline – a letter dated 4 January was emailed to me.

The letter, from the person charged with the internal review, affirmed the original decision, namely that “processing the request would substantially and unreasonably divert the resources of the agency from its other operations”.

I have advised the author of the letter that I shall proceed to request a review by the Australian Information Commissioner and simultaneously make a complaint to the Australian Information Commissioner concerning DFAT‘s performance of its obligations under the FOI Act. It would appear that more of the Department’s “resources” will have to be diverted to answer such complaint.

The reader will have to await a third instalment to learn of the outcome of the reference of the matter to the Australian Information Commissioner.

So it is that the Australian people are yet again denied the bases upon which their government acts.
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In an associated development, I note that on 30 December a vote was taken in the UN General Assembly whereby the International Court of Justice (ICJ) is requested to give an advisory opinion on the legal consequences of Israel’s “occupation, settlement and annexation … including measures aimed at altering the demographic composition, character and status of the Holy City of Jerusalem, and from its adoption of related discriminatory legislation and measures”.

The resolution was passed by 87 votes in favour to 26 against. There were 53 abstentions. Australia voted against. As far as I am aware there has been no airing of the issue nor explanation by the Australian government as to the reason for its opposition. There has been no public debate. Surely the Australian people are entitled to such an explanation as to why the government has so acted in their name.

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