- Australia-Tuvalu Falepili Union
- The Australia-Tuvalu Falepili Union was referred to the Committee on 26 March 2024.
- The Committee received six submissions and held a public hearing in Canberra on 19 June 2024. A list of submissions can be found at Appendix A. The hearings and witnesses are listed at Appendix B. The transcript of evidence from the public hearing can be accessed through the Committee’s website.
Overview
3.3The proposed treaty (Category 1) action is the entry into force of the Australia-Tuvalu Falepili Union (the Agreement) which was signed by Prime Minister Albanese and then Prime Minister Natano in Rarotonga on 9 November 2023.
3.4‘Falepili’ is a Tuvaluan term for neighbours who live in close houses. Fittingly, the Agreement is predicated on ‘good neighbourliness, duty of care and mutual respect’ and the elevation of the Parties’ relationship. The ‘heart’ of this treaty ‘is a commitment to count on each other as we navigate our shared challenges.’
3.5The purpose of the Agreement is to strengthen the respective national security interests of Australia and Tuvalu. This will be achieved through ‘the establishment of a legally binding partnership that provides for enhanced development and climate cooperation, the development of a special human mobility pathway to enable access to Australia for citizens of Tuvalu, cooperation on bilateral and regional security challenges, and cooperation on maintaining stability in the Pacific’. The Agreement also expands upon the upon the Australia-Tuvalu Security Partnership Memorandum of Understanding (2017).
Obligations, implementation and costs
3.6Article 2 pertains to climate cooperation and provides that the Parties (Australia and Tuvalu) commit to collaborate in the face of threats posed by climate change and to assist Tuvalu’s citizens stay in their homes with safety and dignity. The Parties also recognise Tuvalu’s enduring statehood, ‘notwithstanding the impact of climate change-related sea-level rise’.
3.7Article 3 pertains to human mobility with dignity and obliges Australia to arrange for a human mobility pathway for citizens of Tuvalu to access Australia. This pathway would allow such citizens to live, study and work in Australia, and access Australian health, education and income and family support upon arrival.
3.8To support the implementation of this pathway, the Agreement stipulates that Tuvalu is obliged to ensure that its immigration, passport, citizenship and border controls are robust and meet international standards for integrity and security and are compatible with and accessible to Australia. Likewise Australia is obliged to assist Tuvalu in meeting these obligations.
3.9The obligations commence upon entry into force of the Agreement. Once the policy settings of the special human mobility pathway are settled and Tuvalu’s immigration, passport, citizenship and border control systems are strengthened, amendments to the Migration Regulations 1994 will likely be required to implement the special human mobility pathway visa arrangement.
3.10Article 4 sets out the enhanced security obligations for the Parties. In accordance with its international law obligations, international commitments, domestic processes and capacity, Australia is obliged to provide assistance to Tuvalu in response to a major natural disaster, a public health emergency of international concern, or military aggression against Tuvalu. This obligation is predicated on Tuvalu requesting such assistance. Australian assistance would incur costs but it is not possible to estimate these costs until the nature of the request and Australia’s response is known.
3.11The Parties are also obliged to enter into an instrument to set out the conditions and timeframes applicable to Australian personnel operating in Tuvalu’s territory. This instrument will be jointly determined by Tuvalu and Australia after the Agreement enters into force.
3.12Provided that notice is given to Australia, Tuvalu is obliged to provide Australia with rights to access, presence within, and overflight of Tuvalu’s territory if the activities are deemed necessary for the provision of assistance requested by the former under the Agreement.
3.13Tuvalu must mutually agree with Australia on any partnership, arrangement or engagement with any other State or entity on security and defence related matters. This provides Australia with oversight of Tuvalu’s defence and security related engagement with third parties including, but not limited to: defence, policing, border protection, cyber security and critical infrastructure.
3.14Article 5 obliges the Parties to establish a Joint Committee that would meet at least every twelve months to discuss matters arising under the Agreement. It also provides that either Party may convene a meeting of the Joint Committee to discuss any obligation contained in the Agreement or its implementation.
3.15Article 6 requires the Parties to resolve any dispute regarding the interpretation, application or implementation of the Agreement solely by consultation or negotiation between the Parties, and not by referral to any court, tribunal or third party.
3.16Pursuant to Article 8(1), for the Agreement to enter into force, the Parties must notify each other of the completion of their necessary domestic requirements through an exchange of diplomatic notes. The Agreement would then enter into force on the date of receipt of the last diplomatic note. Australia intends to send its diplomatic note as soon as practicable. Tuvalu also intends to progress entry into force of the treaty as soon as possible in 2024.
Termination and amendment
3.17Article 7 states that the Agreement may be amended in writing by mutual consent of Tuvalu and Australia, and that any amendment ‘shall come into force on the date of the later notification by either Party of the completion of their respective requirements for entry into force of the relevant amendment.’
3.18Article 8 largely provides for the termination of the treaty:
- Article 8(2) provides that the Agreement would continue in force unless terminated in accordance with Article 8.
- Article 8(3) provides that the Parties may agree in writing to terminate the Agreement at any time. The Agreement would be terminated on the date agreed by the Parties.
- Article 8(4) allows for unilateral termination by either Party by providing written notice to the other Party. Such termination will become effective twelve months from the date on which the other Party received the written notice of termination.
Issues
Citizenship
3.19In their submission to the inquiry, Professor Donald Rothwell and Ms Sarah Krause raised concerns with the Agreement providing for residency but not including citizenship pathways. The Peter McMullin Centre on Statelessness (PMCS) echoed these concerns and added that it was unclear as to whether ‘persons would be considered permanent residents for the purposes of eligibility for Australian citizenship’.
3.20The PMCS also raised the related issue of limitations within Tuvalu’s own citizenship laws, which provide that a citizen of Tuvalu who acquires the nationality of another country may be deprived of their own Tuvaluan citizenship. Under Tuvaluan law, those who have obtained citizenship through naturalisation or registration may lose their citizenship if they fail to comply with any of the three prescribed conditions under sections 6(4)(b),(c) and (f) of the Tuvaluan Citizenship Act 2008.
3.21The Committee raised both issues at the public hearing, to which the Department of Foreign Affairs and Trade (DFAT) referred the Committee to an explanatory memorandum signed the Australian and Tuvaluan Ministers for Foreign Affairs. DFAT said the explanatory memorandum addressed the issue of citizenship pathways in that visas granted through the Agreement would be ‘permanent residency visas and that visa holders would have access to citizenship processes on the same basis as other permanent residents in Australia do’.
3.22DFAT stated that the visa pathway process was ‘about providing choices for Tuvaluans’ and would operate as a random ballot process open to all citizens. 280 visas will be provided annually and those selected in the ballot are still required to apply for and satisfy the visa requirements in order to be granted the visa.
3.23Regarding the potential loss of Tuvaluan citizenship, DFAT again pointed to the explanatory memorandum and said that ‘taking up Australian citizenship would not affect Tuvaluan citizenship’ and described the explanatory memorandum as ‘the government of Tuvalu's articulation of their position on that matter’.
Support for migrants
3.24In their submission to the inquiry, the Kaldor Centre for International Refugee Law (Kaldor Centre) noted that beyond their arrival, it was unclear what support Tuvaluan migrants would receive. The Kaldor Centre continued that the small Tuvaluan community in Australia ‘may struggle to assist 280 new arrivals each year without considerable support’.
3.25In a submission to the inquiry and at an appearance at the public hearing, Professor Stephen Howes reiterated the importance of government support, stating that the first level of support for recent migrants was often provided by existing diaspora which placed a ‘significant economic burden’ upon them. Professor Howes said along with support, there should be ‘close monitoring of the socioeconomic outcomes’ for migrants.
3.26The Committee questioned DFAT on this issue at the public hearing. DFAT said that while Tuvaluans were ‘already very well connected’ within the community, ‘Australia would provide support for applicants to find work in Australia and to help that growing diaspora retain a connection to culture and improve settlement outcomes’. DFAT said that what the support looked like in practice was still subject to design and contractual service delivery processes.
Consultation
3.27The Australian Government stated that the Agreement was discussed with Pacific Islands Forum leaders ahead of its signature on 9 November 2023 and that State and Territory Governments were advised through the Australian Senior Officials Committee for National Security following its announcement. The Government said that ‘no public consultation was undertaken on the Agreement prior to its announcement as the Agreement relates to bilateral defence cooperation and migration matters and was still under negotiation-in-confidence with the Government of Tuvalu’.
3.28The Kaldor Centre’s submission to the inquiry stated that that there was ‘significant concern within the Tuvaluan community about the lack of consultation about the treaty prior to its announcement’. Academics shared these concerns, stating that the lack of consultation had led to a sentiment of scepticism among many Tuvaluans, and that while the idea of a new migration opportunity was tentatively welcomed, there was concern about the lack of consultation and detail available to understand how the scheme works.
3.29This issue was expanded upon at the public hearing, with Mr Taukiei Kitara from Griffith University stating that ‘diaspora can provide certain Tuvaluan cultural aspects and guidance’ on developing policies or migration pathways. Mr Kitara continued that while the Agreement offered opportunities for better education and health benefits for Tuvaluans, the lack of consultation had led to mixed feelings amongst the diaspora and that Tuvaluans ‘don't understand what the Falepili treaty is’.
Sovereignty
3.30Multiple submissions to the inquiry raised concerns with the Agreement’s potential impact upon Tuvalu’s sovereignty. Article 4(4) of the Agreement requires Tuvalu to ‘mutually agree with Australia any partnership, arrangement or engagement with any other State or entity on security and defence-related matters’. The Kaldor Centre said this comes ‘at a significant cost to Tuvalu’s sovereignty’ because ‘Australia has acquired veto power over Tuvalu’s security interests going forward’.
3.31The implications for Tuvalu’s ongoing sovereignty were also raised by Professor Rothwell and Ms Krause, who noted that Article 4 ‘could allow for considerable intervention into the domestic affairs of Tuvalu’. They highlighted that Article 4(3) requires Tuvalu to grant Australia access to its territory in some instances without prior approval and Article 4(4) grants Australia with potential veto powers in relation to Tuvalu’s security and defence.
3.32The issue of sovereignty in relation to both climate change and security was raised at the public hearing. The Committee inquired into the climate cooperation required by Article 2, to which DFAT said that any cooperation would be underscored by ‘a legal commitment that recognises Tuvalu's continuing statehood and sovereignty in the face of climate change’. On the topic of security and defence-related matters, DFAT emphasised that any Australian intervention would only be made at the request of the Tuvaluan Government.
Population
3.33Concerns were raised with the granting of 280 visas annually, with academics pointing to research that found that after accounting for births and deaths, net losses to Tuvalu’s population of 200 people per year would lead to the population declining by 2030. In their submission to the inquiry, academics from the University of Melbourne and Griffith University stated that ‘too few people can significantly constrain sustainable development as this limits the availability of labour and skills necessary to deliver public goods, as well as vibrant communities and culture, and perhaps most fundamentally, puts sovereignty and self-determination at risk’.
3.34This issue was discussed at the public hearing, with DFAT stating that the Australian Government would frame the visa in a way that encourages travel back and forth between Australia and Tuvalu. The Agreement also permits for the number of visas to be adjusted if Tuvalu is concerned with issues such as population decline. When specifically addressing a potential labour and skills decline in Tuvalu, DFAT hoped that the facilitated movement between Australia and Tuvalu would result in Tuvaluans studying in Australia before taking the skills and experience gained back to Tuvalu.
3.35When discussing the issue at the public hearing, the PMCS did not perceive the purpose of the Agreement to be encouraging of circular migration but instead ‘a response to a dire situation where the opportunities in Tuvalu are dwindling because of climate change’ that offered migrants permanent opportunities within Australia.
Committee comment
3.36The Australia-Tuvalu Falepili Union is a signal to both Tuvalu and the broader Pacific of Australia’s commitment to finding solutions to the region’s security challenges. The Committee understands the significance of the Agreement and its contribution to advancing the national security interests of both countries.
3.37The Committee notes that the Agreement is a legally binding partnership that enhances development, creates human mobility pathways and facilitates cooperation on climate and regional security challenges. The Committee was pleased to hear that the Agreement advances the shared interests of both parties and emphasises Australia’s role as a good neighbour within the Pacific.
3.38While the Agreement places obligations upon Australia, the Committee recognises that they come as part of Australia’s role as a leader within the region and that Australia must make an effort to be a partner of choice for its Pacific neighbours.
3.39Submissions to the inquiry raised concerns relating to citizenship and franchise, support for Tuvaluan migrants, a lack of consultation with the Tuvaluan community, Tuvaluan sovereignty and the potential of a decline in the Tuvaluan population. An explanatory memorandum issued after submissions to the inquiry had closed addressed many of these concerns, although the Committee notes that increased engagement and consultation with communities affected by similar treaty action in the future would be beneficial to all parties. The Committee believes all other concerns have been addressed.
3.40The Committee supports the Australia-Tuvalu Falepili Union and recommends that binding treaty action be taken.