FOI exposes Australia’s attempts to protect Israel on apartheid status

Mar 28, 2023
Palestine -Israel flags depicted as pieces in a white jigsaw

Foreign Minister, Penny Wong has asserted that Australia does not accept that Israel is an apartheid State. Freedom of information (FOI) documents have exposed that this position is not based on DFAT legal advice. The concerns of many Australians that their government, through trade and other dealings, or by even visiting Israel, might be making them an accomplice in a crime against humanity have been left unaddressed in order to protect Israel.

Readers of Pearls and Irritations may recall two precedents to this article by the same author.

The first was titled “Australia must clarify Israel’s status as an apartheid State” published on 3 November 2022. The second was titled “Australia’s DFAT blocks FOI request on Israel apartheid status” and was published on 9 January 2023. The second summarised the first in this way:

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.

In the second article I informed the reader of an application brought by me under the Freedom of Information Act on 8 November 2022 seeking, generally, documentation relied upon by the Department of Foreign Affairs and Trade (DFAT) addressing the issue of the crime of apartheid in Israel and the Occupied Territories. I further informed of DFAT’s 28 November refusal to disclose any such documentation.

I proceeded to inform of a second, more limited, FOI request, confining the same general request to the addressing of the Human Rights Watch (1 April 2021) and Amnesty International (1 February 2022) reports which had found Israel to be committing the crime of apartheid. I noted that DFAT had until 8 December to respond to the second request. I then advised that the second request was amended slightly resulting in the response time being extended to 30 days from 6 January 2023.

In the meantime a request for an internal review of the first request was rejected resulting in a complaint being made to the Office of the Australian Information Commission (OAIC). The Office is expected to respond within 60 days, which in this case would expire circa 10 March. The Office has not responded.

I return to the second request. DFAT sought an extension of time to respond to same, which extension was granted by the OAIC, to 20 March.

A response was received on 23 March from an Assistant Secretary of DFAT. It is my contention that the response treats both myself, and the Australian public, with contempt. It asserts that the author has “decided to grant you access to the documents in part” (emphasis added). It then informs of certain ‘exemptions’ (justifying refusal) for these categories:

  • where to disclose might damage Australia’s foreign relationships (s.33(a)(iii) – FOI Act);
  • where documents might ‘contain deliberations that have taken place in the course of the department’s deliberative processes’ (s.47C);
  • where disclosure might ‘have a substantial adverse effect on the department’s ability to effectively and efficiently undertake its operational activities’ (s.47E(d)); and
  • where disclosure ‘would constitute an unreasonable disclosure of a person’s personal information’ (s.47F(1)).

The Assistant Secretary noted his obligation to take public interest considerations into account but concluded that ‘the public interest is weighted against the disclosure of this material’.

The response then attached some 70 pages of highly redacted material. The redaction was such in many cases as to not provide the date of the document, or the identity of its author.

Some excerpts from documents apparently emanating from the Middle East Branch (MEB) of DFAT were however revealing. I reproduce some such:

  1. Date not identified (but apparently shortly after 1 February 2022)

Allegations of apartheid

On 1 February 2022, Amnesty International released its report: ‘Israel’s Apartheid against Palestinians: Cruel System of Domination and Crime Against Humanity’. The report argues that Israel perpetuates an institutional and systematic discrimination against Palestinians which meets the framework of the definition of apartheid under international law.

The report was rejected by Israel upon release, with Foreign Minister Lapid saying: “the facts that appeared in the report published this week were a delusion divorced from reality”. In urging the then-Government not to dismiss the report, Senator Wong said Labor objected to the use of the word “apartheid” arguing the accusation hinders the peace process.

2.  Date not identified

  • The Australian Government does not agree with the use of the term ‘apartheid’.
  • Apartheid is a legal characterization under international law
    – no international court has applied the term to this situation
    – it is not appropriate to provide further legal commentary on this issue.
  • The term is not helpful in progressing meaningful dialogue and negotiation necessary to achieve a just and enduring peace.

3.  6 May 2021
OFFICIAL: Sensitive
Has MEB prepared summary/background of the HRW report? If so, I’d be grateful if we could please have a copy as it may be useful background to provide to our FAS for his estimates brief.
Legal Division, DFAT.

4.  3-4 June 2021
Human Rights Watch Report
Does Australia agree with the conclusions in the report that Israel is committing crimes of humanity of apartheid and persecution?

  • Consistent with our approach to other NGO reports alleging violations of international law, it has not been our practice to engage with these legal arguments.
  • Australia’s general approach has been to encourage both Israel and Palestine to resolve disputes through peace negotiations, rather than engaging on legal issues.
    – The Government will not prejudge the outcomes of such negotiations
    – It would not be productive in this context for me to provide legal commentary on this issue.

5.  3-4 June 2021
Background – Human Rights Watch Report
1. Summary of the Human Rights Watch Report
On 27 April Human Rights Watch released a 213 page report concluding that crimes against humanity – specifically the crimes of apartheid and persecution – were being committed against Palestinian Arabs in Israel and the Palestinian Territories. ……

Amongst other recommendations, the report urged the international community to re-evaluate its approach to Israel and the Palestinian Territories, including by ceasing to view human rights issues as “temporary symptoms of occupation that the peace process will soon cure.” The report recommended that the ICC Prosecutor “investigate and prosecute individuals credibly implicated in the crimes of humanity of apartheid or persecution”.

2. Reactions to the HRW Report
Australia has so far avoided engaging with the substance of the report and has not commented on the specific allegations.

6.  17 February 2022
Background – Amnesty International Report
1.Summary of the Amnesty International Report
On 1 February 2022, Amnesty International released a 280 page report concluding that the crime of apartheid was being committed by Israel against the Palestinians. The Report alleged that Israel has intentionally created and maintained a system of oppression and domination over Palestinians which amounts to the crime of apartheid.

2. Australia’s response to the Amnesty Report
PM Scott Morrison stated to the media at a press conference on 2 February 2022: “Australia has been one of the closest and strongest friends of Israel …No country is perfect and there are criticisms made of all countries, but I can assure you that Australia and my government, in particular, will remain a staunch friend of Israel”.

Statement from the Department: “The Australian Government values Amnesty International’s role as an important civil society voice on human rights issues. We regularly raise human rights with Israel, particularly settlements and demolitions, and the administrative detention of Palestinian minors, through our Embassy in Tel Aviv and Israel’s Embassy in Canberra. Amnesty’s report is a useful source of information, but the Government has not sought to make an assessment on the broader characterisations in the report. Australia’s human rights efforts focuses on immediate issues on the ground, on which we make specific representations to the Israeli authorities”.

7.  Date not identified
HRW/Amnesty allegations of apartheid
Does the Government agree with allegations of apartheid made by Human Rights Watch [27 April 2021], Amnesty International [1 February 2022] and the UN Special Rapporteur Michael Lynk [21 March 2022]?

  • The Australian Government does not agree with the use of the term “apartheid” in this context.
  • The term is not helpful in progressing the meaningful dialogue and negotiation necessary to achieve a just and enduring peace.

If pressed: on legality of allegations of apartheid

  • ‘Apartheid’ is a legal characterisation under international law
    – Including as an element of a crime against humanity under the Rome Statute of the International Criminal Court.
  • Australia’s practice is to not engage with legal characterisations of this nature in NGO or other reports.
  • As with genocide, our position is that it is for competent judicial bodies to determine whether crimes against humanity have been committed.

These extracts are representative. They cover the limited disclosure given. I do emphasise that there is no suggestion of Australia having carried out any in depth analysis of either report in order to arrive at an informed determination as to the reliability of such report.

I now proceed to comment upon certain features. The first is the suggestion that apartheid is not necessarily established by the reports. The first thing to ask is “has there been a challenge to the reports?” When the HRW report was issued the Israeli government was at a loss to find anything wrong with it. The government fell back on the usual argument of, ‘you must be antisemitic’. The MEB note that Foreign Minister Lapid rejected the factual findings in the Amnesty Report. Surely DFAT would place no weight on that: no more than would a criminal investigator place reliance upon a denial by the prime suspect in, say, a murder investigation. The evidence is uncontentious: settlements, demolitions, forced evictions and removals, arbitrary arrest and illegal imprisonment, denial of rights to work, education, freedom of movement, peaceful assembly, and a dual legal system applying in the West Bank to settlers on the one hand, and Palestinians on the other. All of that is against the background of Israel’s 2018 Basic Law proclaiming the supremacy of Jews in ‘the promised land of Israel’ including the whole of the West Bank. The new Israeli government, on taking office, declared in its manifesto that Jews have the “exclusive and unquestionable right to all parts of the Land of Israel ….. in the Gallilee, the Negev, the Golan, Judea and Samaria”. To that end it has since then killed Palestinians (35 in January 2023 alone), demolished homes, accelerated ethnic cleansing. It is clear that the new government’s plan is to apply Israeli sovereignty to the entirety of the West Bank, East Jerusalem and Gaza, without granting citizenship to the millions of Palestinians living there. Is there any doubt that there is growing international recognition, except apparently from Australia, that Israel is committing apartheid?

The second is that Australia prefers to leave the determination of apartheid to a judicial body. Does it? Why was it then that when the UN General Assembly moved on 30 December 2022 to request an advisory opinion from the International Court of Justice on the legality of Israel’s occupation of the West Bank – including East Jerusalem – and Gaza, Australia voted against the motion. One mover of the motion advanced that an issue to be resolved was “Israel’s apartheid settler-colonial regime”. Australia’s vote constituted an abdication of its responsibilities under international law.

Then there is the suggestion that to characterise as apartheid is to be unhelpful to the “peace process”. I ask “What peace process?” It seems clear that the two-state solution is dead. That became clear after the failure of the Oslo Accords and the reality of an endless occupation and the intransigence of Israeli negotiators. The two-state solution approach has dominated international diplomacy for years, allowing the West, including Australia, to maintain its embrace of Israel without seeming to throw the Palestinian people under the bus. There can no longer be any doubts. Israeli government ministers are now on the record asserting that “there will never be a Palestinian State”.

Then there is the exemption because to disclose “might damage Australia’s foreign relationships”. One presumes the relationship with Israel is the issue. But one must then ask whether doing nothing might impact Australia’s position vis-à-vis Lebanon, Syria, Iraq, Iran, Jordan, Egypt, etc.

Then there is the exemption for personal information. It is difficult to imagine what personal information might be affected. Could it only be that of Zionist lobbyists, funders of political parties, etc.? I have in mind the Zionist Federation of Australia, the Executive Council of Australian Jewry, (ECAJ), and the Australia/Israel and Jewish Affairs Council (AIJAC). Are the interests of such organisations and/or individual members thereof seriously relevant when one compares such interests against those of Australians concerned that their country, Australia, might be collaborating, become an accomplice, in a criminal act?

Next is the addressing of ‘public interest’. Might I be so bold as to suggest that the public interest is all one way – and that is in favour of disclosure. The concerns of many Australians that their government, through trade and other dealings, or that Australian companies, by dealing with Israeli companies, or their fellow citizens, by even visiting Israel, might be making each an accomplice in a crime against humanity. What higher public interest might there be?

Final comments. In recent weeks P&I has dwelt at length on the issue of AUKUS and the submarine deal. A number of writers have raised the question of Australia compromising its sovereignty by its involvement. I ask, “Has Australia surrendered its sovereignty on issues appertaining to Israel?”, and given the apparent obvious affirmative answer, I ask “Why?”

Supporting FOI documents:

LEX7052 – Part 1 Documents

LEX7052 Part 2 Documents

Signed decision letter


For more on this topic, we recommend:

Australia’s DFAT blocks FOI request on Israel apartheid status

Australia must clarify Israel’s status as an Apartheid state

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