Agreement between the Government of Australia and the Government of Solomon Islands Concerning the Basis of Deployment of Police, Armed Forces and other Personnel to Solomon Islands
Introduction
3.1
This Chapter reviews the Agreement between the Government of Australia and the Government of Solomon Islands Concerning the Basis for Deployment of Police, Armed Forces and Other Personnel to Solomon Islands. The Agreement was signed in Canberra on 14 October 2017 and tabled in the Parliament on 16 October 2017.
Background
3.2
During five years of ethnic and civil unrest between 1998 and 2003 known as the ‘Tensions’, Solomon Islands came close to becoming a failed state. This possibility presented Australia with a range of issues:
It would have exacerbated security threats faced across the Pacific, such as narcotics trafficking, illegal fishing, health pandemics, irregular people movements and natural disaster.
3.3
In 2003, at the invitation of the Solomon Islands government, Australia led the Regional Assistance Mission to the Solomon Islands (RAMSI) to assist with stabilisation and peace building.
3.4
RAMSI was a partnership with 15 Pacific Island nations and, over 14 years, it was successful in:
rebuilding critical law and order institutions;
stabilising government finances;
restoring business confidence; and
rebuilding the Royal Solomon Islands Police Force (RSIPF).
3.5
RAMSI concluded on 30 June 2017. According to the National Interest Analysis (NIA), while RAMSI successfully fulfilled its mandate, Solomon Islands continues to face many development challenges, some of which were the underlying causes of the ‘Tensions’. The country will need ongoing support to retain the gains made under RAMSI and to help build long-term stability and enduring growth. The NIA suggests that the Agreement provides an important message to the people of Solomon Islands that Australia stands ready to assist in the event of a future emergency.
Overview
3.6
The Agreement, together with a written request from the Solomon Islands Government, provides a legal basis for the Australian Federal Police (AFP), Australian Defence Force (ADF) and associated civilian personnel, with contributions from other countries, as appropriate, to deploy rapidly and effectively in an operational capacity in the event of a major security challenge or event, including humanitarian response situations.
Reasons to take the proposed treaty action
3.7
The NIA considers that the Agreement will reinforce the close bilateral relations between Australia and the Solomon Islands as well as consolidating Australia’s role as the country’s primary security partner. DFAT drew attention to the limited capacity that the Solomon Islands has to tackle major security issues;
Solomon Islands, like many countries in the region, has limited capacity to respond individually to security challenges such as transnational crime, natural disasters, climate change and outbreaks of pandemics. The bilateral security treaty … will allow Australia to assist the Solomon Islands with these security challenges. It will also reinforce Australia’s close bilateral relationship with the Solomon Islands.
3.8
According to the NIA, the ongoing stability of the Solomon Islands and the region is critical to Australia’s national interest. The ability of Australia to respond quickly to a crisis or threat could prevent a security vacuum in the Solomon Islands. Such a security vacuum could see an increased risk to Australia and the broader pacific region. DFAT reiterated the importance to Australia of stability and economic progress throughout the Pacific Island countries:
Stability in the region is vital to our ability to defend Australia’s northern approaches, to secure our borders and to protect our exclusive economic zone.
3.9
DFAT explained that there had been some concern amongst the general population of the Solomon Islands regarding the conclusion of the RAMSI mission and the withdrawal of its personnel. The negotiation of the new bilateral agreement had gone someway to allaying those fears and had, in the Department’s view, wide support among the Solomon Islanders:
The message we got from [local consultations] was very supportive of this treaty and the need to put in place arrangements to reassure the people that Australia was not just leaving the country and turning its back on the Solomon Islands.
3.10
DFAT referred to the length of time required to set up the RAMSI agreement and stressed the importance of having this Agreement in place to allow a quick and effective response to any incident:
… one of the advantages of having this treaty in place is that we don’t really need to get too bogged down in … detailed discussions when a security incident or a humanitarian disaster occurs. The treaty sets out quite thorough and detailed rules on the powers a visiting contingent would have, so we can move in rather quickly.
3.11
Asked if there was any likelihood of Australian forces being redeployed to the Solomon Islands, DFAT assured the Committee that there appeared little reason to expect such an event. The AFP confirmed this assessment and provided recent examples demonstrating the strength of the RSIPF to maintain law and order:
Since RAMSI ceased on 30 June, there have been a couple of incidents that could have been a flashpoint, could have developed into what we might have thought would be a flashpoint. But the RSIPF are a developing police force. … it is a new RSIPF. It is really developing that way. We’ve had the leader of Taiwan go in on a high-level visit right in the middle of a no-confidence vote. As soon as the no-confidence vote was in, the RSIPF were actually able to mobilise and protect the community and have that presence in the community that instilled that confidence. For that to happen in such a short time post RAMSI, I think goes well for the future.
Deployment of personnel
3.12
There are currently 44 Australian personnel deployed to the Solomon Islands: 43 unarmed police officers and one member of the fire service. This figure is expected to remain constant for the next four years. The review after two years will determine if any changes are required:
At the two-year mark we’ll do a review, assessment, monitoring and evaluation to see how it’s going, and that’s when we’ll make the decision, after the four-year period, to either increase or decrease.
3.13
The Committee asked what the status of these personnel is, considering that the new treaty has not yet come into force. DFAT explained that AFP personnel currently deployed are advisers and have no police powers:
… the AFP officers in the country are employed as advisers in much the same way as an AusAID adviser would be treated. They have no powers under Solomon Islands legislation to exercise the authorities of a member of a police force. They’re effectively providing technical assistance to the Solomon Islands police force in the same manner as AusAID staff generally do to other departments.
3.14
The AFP elaborated on the support role:
We mentor and support and develop. The RSIPF have the capability to do their policing roles. Behind those, we support them to protect life and property.
3.15
DFAT told the Committee that the current AFP contingent is deployed as part of the Solomon Islands Police Development Program (SIPDP) which takes place under a Memorandum of Understanding (MOU) signed on 14 April 1994. The MOU does not provide the ‘same level of privileges and immunities’ that were available under the RAMSI treaty and the advisers hold Official Passports, not Diplomatic Passports.
that the Government of the Solomon Islands will arrange for protective services necessary to ensure the safety of the person and property of Australian personnel and their dependents (Article 16);
some exemptions from the usual laws of the Solomon Islands. For example, exemptions from certain duties, taxes and levies (Article 10); and
that the Government of the Solomon Islands will ‘bear all risks associated with operations’ and ‘will hold harmless the Government of Australia and Australian personnel’ in the event of claims arising from activities under the MOU.
3.17
DFAT reiterated that the current contingent of AFP personnel deployed to the Solomon Islands ‘do not possess the legal authority … to carry firearms, use force or exercise police powers’. However, they have the same rights as the general population to protect themselves:
The ability of AFP members to respond to threats to life, limb and property is not different to any other member of the Solomon Islands public. However, the common law doctrine of self-defence would operate to exclude criminal liability in circumstances where an AFP member applies force and that use of force is necessary and reasonable in the circumstances.
3.18
With regard to the Agreement under review here, the NIA explains that it provides for future assisting police and defence forces to exercise the same powers and authorities, and have substantially the same privileges and immunities, as were provided under the RAMSI treaty. The relevant privileges and immunities are implemented in Solomon Islands domestic law through the Facilitation of International Assistance Act 2003 (Solomon Islands).
3.19
The Committee queried if it is a blanket immunity or if there are exceptions. Defence considered that the Agreement conveyed adequate immunity for the purpose of the treaty:
It is a sufficient immunity to cover any type of deployment envisaged under the treaty and it is an immunity from legal proceedings, both civil and criminal, and in relation to their official duties. It’s reasonably broad …
3.20
DFAT said that the immunities applied as long as the actions of the personnel were ‘taken in the course of, or incidental to, their official duties’. The Department directed the Committee’s attention to Article 6 of the Agreement which makes clear the extent of the immunities:
Members of a Visiting Contingent (defined in Article 1 as personnel comprised of an Assisting Police Force, Assisting Defence Force and/or Other Personnel) will be immune from arrest, detention and all legal proceedings in Solomon Islands courts and tribunals in relation to their official duties. The members also cannot be compelled to appear or give evidence in any legal proceedings in Solomon Islands. ‘Legal proceedings’ is defined widely to include criminal, civil, disciplinary, administrative and customary law proceedings.
3.21
Article 6 provides for Australia or a Third Party State to waive any immunity if the circumstances warrant it. It also allows Australia or a Third Party State to assert jurisdiction over members of the contingent:
… Australia or a Third State may assert criminal or disciplinary jurisdiction over actions of a member in the Area of Operations, including actions outside of official duties. In such circumstances, the Solomon Islands will not assert, or will relinquish, jurisdiction over such actions of the member.
3.22
The Committee was told that the details of rules of engagement and/or status of forces arrangements are not contained in the Agreement. However, the Committee was assured that the relevant provisions could be drawn up quickly for both the Australian Defence Force (ADF) the Australian Federal Police (AFP) if required:
… the Australian Defence Force would, in the event that ADF personnel were deployed to the Solomon islands, fairly quickly come to a position where we would settle and promulgate rules of engagement for ADF members. We would liaise with our AFP colleagues to make sure that there was consistency, noting that we operate under different frameworks. It is the case that we do not have rules of engagement for this operation because it’s not an operation yet, in effect.
3.23
The AFP explained that they already have use-of-force options in place and that these would apply:
The use-of-force guidelines which apply to AFP on deployments–and this includes within Australia and outside of Australia–are of course matched to the circumstances and the environment in which they’re operating … when we operate in countries like the Solomons, the police in the Solomons know exactly what we do and how we do it. They know under what circumstances a weapon might be produced and under what circumstances a weapon might be used. And we would try to act entirely consistently with that while we are in country.
3.24
While both Defence and the AFP would seek to work cooperatively with the Solomon Islands authorities, officers from both forces would remain under national command.
The Agreement
Obligations
3.25
Article 1(ix) defines ‘Visiting Contingent’ as a contingent of personnel comprised of an Assisting Police Force, Assisting Defence Force and/or Other Personnel.
3.26
Article 2(1) allows Australia to deploy a Visiting Contingent to Solomon Islands at the written request of Solomon Islands, after Australia has accepted such a request based on Australia’s assessment of the circumstances on a case-by-case basis. The Visiting Contingent will assist in the provision of safety and security of persons and property, provide humanitarian assistance and disaster response, and/or provide such other assistance as may be mutually determined.
3.27
Article 2(2) provides that Australia and the Solomon Islands must consult on the nature and duration of requested deployments.
3.28
Article 3(1) obliges Australia to nominate a head of a Visiting Contingent and notify Solomon Islands of the appointment. This nominee is obliged under Article 3(3) to work cooperatively with Solomon Islands to achieve the purposes of the deployment.
3.29
Article 4 and Article 5 provide for the scope and powers of Assisting Police Force and Assisting Defence Force personnel. Where an Assisting Police force is deployed as part of the Visiting Contingent, the most senior Australian police officer notified to Solomon Islands shall serve as its commander (Article 4(1)). Where an Assisting Defence Force is deployed as part of a Visiting Contingent, an Australian Defence Force member notified to Solomon Islands shall serve as its commander (Article 5(1)).
3.30
Both the Assisting Police Force and Assisting Defence Force will be able to exercise the powers, authorities and privileges afforded to members of the Royal Solomon Islands Police Force, and use such force as is reasonable necessary to achieve the purposes of the deployment (Article 4(9) and Article 5(4)).
3.31
Article 6(1) obliges a Visiting Contingent to take all appropriate measures to ensure that Solomon Islands laws are observed and respected. Article 6(2) provides that members of a Visiting Contingent shall be immune from arrest, detention and legal proceedings in Solomon Islands courts and tribunals in relation to actions that are taken in the course of, or are incidental to, official duties.
3.32
Members of a Visiting Contingent will be accorded privileges in relation to matters such as entry and departure (Article 7), freedom of movement (Article 9), taxation (Article 17), utilities and facilities (Article 10), communications (Article 11) and health and safety (Article 12).
3.33
Article 18 obliges a Visiting Contingent to withdraw within three months if Solomon Islands request the withdrawal in writing. Under Article 18(3), following consultations between the Parties, Australia may at any time withdraw a Visiting Contingent, or any part of it, from the Solomon Islands.
3.34
Article 20 provides that Australia, with the consent of the Solomon Islands, may invite third states to contribute to a Visiting Contingent.
Implementation
3.35
The NIA states that no changes to Australian domestic law are required to implement the proposed Agreement.
Costs
3.36
The NIA states that if Australia decides to deploy a Visiting Contingent to Solomon Islands, Australia will incur costs as a result. The NIA points out that until the nature and duration of such a deployment are known, it is not possible to estimate the costs.
3.37
Under Article 2(1), any request to deploy Australian forces would undergo a decision making process which would include a cost consideration, based on the specific request of the Solomon Islands Government.
Conclusion
3.38
The Committee recognises the importance of the Pacific region to Australia’s security and the need to provide ongoing support to the Solomon Islands to enable it to maintain and build on the gains made under RAMSI.
3.39
The Committee is satisfied that the Agreement will provide the legal framework for Australia to respond quickly and efficiently to any request for assistance from the Solomon Islands, as well as for the protection and safety of Australian personnel deployed on such a mission.
3.40
The Committee supports the treaty action and recommends that binding treaty action be taken.
3.41
The Committee supports the Agreement between the Government of Australia and the Government of Solomon Islands Concerning the Basis for Deployment of Police, Armed Forces and Other Personnel to Solomon Islands and recommends that binding treaty action be taken.