Topics: Israel-Hamas conflict; Illegal boat arrivals; Migration legislation; Yusuf Zahab;     

08:45AM AEDT
07 April 2024


David Speers: Simon Birmingham, welcome to the program.


Simon Birmingham: Hello, David. Good to be with you.


David Speers: So, you called for a full and thorough investigation. You said the findings should be made transparent. Are you satisfied with what Israel has produced?


Simon Birmingham: David, the death of Zomi Frankcom is clearly a tragedy, along with those of her colleagues working for this humanitarian organisation. And it’s a tragedy in a sea of tragedies that dates all the way back through to October 7th, when, of course, we saw another Australian, Galit Carbone, also killed at the hands, though of Hamas, who instigated the cycle of violence that has been occurring since October 7th through their barbaric terrorist actions. Now, unlike Hamas, Israel does have processes and they have been stepping through those processes of investigation. They’re not complete yet. Interim findings have been made and provided, but we want to see that there is clear action taken in terms of understanding how this tragedy occurred, importantly, how it will be prevented from occurring again in the future because to see humanitarian aid flow into Gaza does require humanitarian workers to be able to operate safely there. And that requires Israel clearly to look carefully at the procedural failures that occurred that enabled this terrible tragedy to happen.


David Speers: So, you still want more answers and more action?


Simon Birmingham: Well, we want to understand how procedures will change to ensure that humanitarian workers can operate safely. We respect that there are processes underway, but we expect those processes should continue to be transparent and to understand the concern Australians legitimately have for the loss of an Australian life here in Zomi Frankcom, just as we were concerned, and certainly from the Coalition, deeply concerned that I personally visited the sites where Galit Carbone was barbarically murdered, along with so many others by Hamas. And we shouldn’t let the context of this conflict be lost. And that context is that you have in Hamas, a terrorist organisation recognised as such here in Australia, that is committed to the elimination of Israel, to its fight against the Jewish people, and who killed more Jews on a single day than at any time since the Holocaust last year. No country could or would live alongside that type of threat.


David Speers: Just on this incident, though, Israel has stood aside two officers, three commanders have been reprimanded. Is that sufficient action?


Simon Birmingham: Well, that does show some action and some accountability. And again-.


David Speers: Is it enough?


Simon Birmingham: Well, David, there are continuing processes I understand. I’ve had conversations with Israel’s Ambassador to Australia to ensure that we understand the steps that are being taken. Of course, the government has a higher level of dialogue with the Israeli government-


David Speers: But, from your position it may not be enough?


Simon Birmingham: Well, they Israel itself are continuing to undertake processes. So we will have to see where those processes go in relation to the accountability equation for those who were involved in this strike, as well as in relation to the change in procedure that is necessary to ensure that humanitarian workers can operate safely and humanitarian access can be provided safely into the people of Gaza.


David Speers: Do you support this idea of having this special adviser that the foreign minister has announced to basically review how Israel is handling this?


Simon Birmingham: We’ll have to see the details of what the role of this special adviser will be and who is appointed, and how it is that they are expected to engage with the Israeli government. So, there’s an announcement there, but there are no details as yet from the Albanese Government. When we see those details, we’ll be able to have a more informed consideration of it.


David Speers: But there might be a case to have someone continuing to ask questions of Israel and keeping pressure on Israel?


Simon Birmingham: David, our expectation is to see Israel continue the investigations they have underway to use the processes that they have and for there to be transparency around that. As I said, there are really two issues there. One relates to accountability for this incident and how that is resolved. The other relates to changes to procedure to ensure that other humanitarian workers, this is not the only tragedy to have occurred in this conflict involving humanitarian aid workers. Of course, it’s not the only tragedy to have occurred in many other conflicts involving humanitarian aid workers, but there’s a responsibility on Israel to make sure that they respond with changes to their procedures to prevent such tragedies from happening again and we want to see that all of those procedures are followed appropriately.


David Speers: International human law says humanitarian relief personnel must be respected and protected. Do you think international humanitarian law has been followed here?


Simon Birmingham: Well, David, those will be part, logically, of the type of investigations and assessments being undertaken. Obviously, this tragedy should not have occurred and it should have been preventable. But this mistake, this accident, this tragedy has happened. That’s why it’s subject to these types of investigations.


David Speers: I’m just asking if it’s a breach of international law. You’re not sure at this stage?


Simon Birmingham: Well, you’re asking me to give a legal judgement. I’m not either qualified nor in a position of all of the facts to give that legal judgement. What I will respect are the processes that are underway. We want to make sure those processes are transparent, and they are fully addressing those two different pillars that I’ve spoken about in relation to accountability around the incident and changes to procedures to ensure that it is not repeated again. But none of us should lose sight of the broader moral context in which this war is being fought and that is that none of these points of of process and equivalence apply to Hamas, who killed an Australian, along with, of course, 1200 other people in barbaric circumstances. They don’t have transparency. They don’t have processes. They do still have up to 130 hostages who they continue to refuse to release, and they are continuing to hide their terrorist operations and their war infrastructure behind and under civilian infrastructure and humanitarian workers and others within Gaza, which is only created a far greater death toll than would have been the case were they an entity operating according to any type of standards or international law.


David Speers: I understand your criticism of Hamas. We hear that. I’m just wondering how willing you are to criticise Israel over this incident and more generally, over its conduct in the war. On this incident, you’ve said you want to see procedures changed. You want to see more answers. You’re not willing to judge whether this is indeed a breach of international law. Does it really fall into the category of mistakes that happen in war?


Simon Birmingham: David, mistakes and tragedies do happen in war.


David Speers: But does this fit that category?


Simon Birmingham: It is naive for any of us to pretend that they don’t, and that innocent civilians haven’t been killed by our forces, the forces of other nations, and any other operating in a war like context. That is the terrible, terrible tragedy of war and why we should all work through as many diplomatic channels and in the building of effective deterrence, which involves having strong investment in defence forces to avoid having war.


David Speers: But does this- question is, does this really fall into that category?


Simon Birmingham: David, this is a tragedy. It shouldn’t have happened. It is wrong that it happened. We’ve been very clear about that. We have expectations in terms of the investigations that should occur. But we also cannot turn away or be so naive as to pretend that tragedies and mistakes don’t occur in war. They do. They happen all the time. It’s a terrible thing. We’d wish it wasn’t the case. And in this relation, we seek to engage with Israel, and we expect the Australian government to engage with Israel to understand how accountability can be had for the mistake that occurred and how it can be prevented in the future through changes to their procedures.


David Speers: More generally then, do you think Israel should take more care when it comes to the protection of civilian lives in Gaza?


Simon Birmingham: Well, let’s start by again noting that Israel takes more care than Hamas takes when it comes to protection of civilian lives. Hamas hides under civilians and amongst civilians.


David Speers: I’m asking about Israel, though.


Simon Birmingham: -in the context of this war. Now, Israel has responsibilities, as we have said from day one, to uphold international law and to have regard for that in the context of this conflict. And they are rightly held to account by many around the world in terms of that. That is a significant part of debate about how this conflict occurs. We would wish to see more and effective access of humanitarian aid into Gaza to help those who need it. That is a critical part of what needs to occur, and it’s why necessary procedural action and steps should be adopted by Israel to ensure that humanitarian aid should flow. But we also would wish to see the hostages still held by Hamas released. That is something that that often seems to get overlooked in the public debate at present, that Hamas continues to hold those hostages. Were they immediately and unconditionally released, we would actually have the circumstances for a ceasefire to actually be applied and hopefully to move into more peaceful times. But Hamas is not willing to-


David Speers: Let me ask you this you this question. Let me ask you this question one more time. Do you think Israel needs to take greater care with the protection of civilian lives?


Simon Birmingham: Israel needs to take care with the protection of civilian lives-


David Speers: Greater care.


Simon Birmingham: -consistent with its obligations under international law, as we have said from October 8th onwards.


David Speers: But more care than it has over the past six months.


Simon Birmingham: There was not conflict in Gaza on October 6th, Hamas instigated that on October 7th. Israel has duties under international law, and we are clear about that as we have been from the outset-


David Speers: We’ve heard that point. I’m just going to jump in one more time, more care than it has shown for the past six months?


Simon Birmingham: Well, clearly, when mistakes like the one that has just occurred and other mistakes have happened as they do during war, Israel should be learning from each of those mistakes and making necessary changes and procedures to ensure that it is applying as safe an environment as possible for humanitarian workers, for the protection of civilians who receive warnings, who are provided with advice. But of course, it is upon Israel in terms of the eyes of the world, to act with regard for international law. And that is a standard that is far higher than the standard applied tragically to a terrorist organisation. And that’s why that terrorist organisation needs to be removed from any position of influence, governance or threat such that we can actually move into a more peaceful negotiation environment in the future.


David Speers: A few other issues while we’ve got you here. Tonga is hosting the Pacific Islands Forum a little later this year. Its prime minister says they’re open to an offer from China to help with security for the event. He says there’s nothing to be concerned about here, but how concerned are you about it?


Simon Birmingham: I think these are concerning reports. The Pacific Islands Forum is a very critical piece of our regional diplomatic architecture, and when Pacific Island Forum leaders meet, we should expect that the security and other logistics for those meetings are provided by Pacific Islands Forum countries. If there is a suggestion that China is going to be providing that security or other logistics, then I think that would be concern to many PIF member nations. And the Albanese Government needs to be clear as to how it is potentially come to this and what steps it is taking to make sure that Tonga is provided with all of the additional and necessary support, so that PIF member nations are providing the security and logistics for those PIF meetings to occur.


David Speers: Another boatload of suspected asylum seekers has apparently arrived off the Kimberley coastline. There, it’s reported that they’re citizens from China. Do people from China deserve protection?


Simon Birmingham: David, consideration of protection is done according to the legal frameworks around refugee environments. However, this is the third boat since November that appears to have made it to the Australian mainland, potentially not only making it to the Australian mainland, but offloading passengers and then departing without any detection of that boat happening. This is a big indictment on the Albanese Government if that is the case, that boats are making it to the mainland and departing with increasing frequency without detection, and it comes at a time where the evidence provided to Senate committees and procedures shows that we have a reduction in relation to maritime surveillance, a reduction in relation to aerial surveillance, concerns about the future budget projections for Operation Sovereign Borders, and a government that had dismantled the temporary protection visas pillar of those arrangements. So, the Albanese Government needs to acknowledge if there are increasing failures here, those problems, their responsibility and act to fix them.


David Speers: The government is trying to strengthen migration laws in relation to those who won’t cooperate when they’re here with immigration officials. It’s legislation it introduced a parliament nearly two weeks ago. Have you yet found any problems that you’re concerned about in this proposed new law?


Simon Birmingham: Well, David, what we saw a couple of weeks ago felt very much like a try on from the Albanese Government. They had twice brought emergency migration legislation to the parliament, the first one for electronic surveillance of individuals. And it’s subsequently been revealed that many of the individuals who could be captured by this are not subject to that electronic surveillance. The second one for a form of preventative detention orders and it’s subsequently been revealed that no preventative detention orders have been sought by the Albanese Government. So, forgive the approach when the third attempt came along and the government weren’t direct or clear about what the urgency of it was when they had legislation that they’d been sitting on for at least days before they presented it to the Parliament, that we believed that more than 36 hours’ worth of scrutiny was warranted for that legislation.


David Speers: Have you found any problems- just quickly on this? Have you found any problems, though two weeks on?


Simon Birmingham: Its going through the proper process of a Senate Committee inquiry. Now, we made sure that committee reports before the very next sitting day. So, if the government wants it considered, then it will be ready to be considered then. But it’s the standard process. Submissions are being invited from interested parties, and we will then hear from appropriate witnesses in that process.


David Speers: A final one, and this is about someone who actually is an Australian citizen, Yusuf Zahab. He was 12 years old when his family took him to live under Islamic State in Syria, back in 2015. For years, he was thought to be dead along with the rest of his family. Turns out he’s alive. This is a pretty extraordinary story uncovered by SBS Dateline program. They’ve tracked him down in a Syrian jail. He’s being held there without charge. He’s been stuck there for years. Should Australia be trying harder to bring him home?


Simon Birmingham: There are enormous complexities when it comes to the situation in Syria, complexities in terms of safety, access, the type of diplomatic relations that that frankly don’t exist. And they are challenges faced not only by Australia but by countries like Canada as well. And then beyond those complexities, there are the security assessments in relation to individuals who have spent a long time embedded with Islamic State fighters and the threats that are posed there. Now, on this particular case, the Opposition hasn’t had briefings from the government about this individual and his circumstances. So, it’s for the government to speak as to what they know and what could or couldn’t be done. But we do understand the breadth of complexities there and the paramount responsibility to also ensure that Australia and Australian officials are kept safe through those processes.


David Speers: Simon Birmingham, we’ll have to leave it there but thanks for joining us this morning.


Simon Birmingham: Thanks David, my pleasure.