- Fiji Status of Forces
Agreement between the Government of Australia and the Government of the Republic of Fiji on Cooperation in the Field of Defence and the Status of Visiting Forces
2.1Fiji Status of Forces was referred to the Committee on 19 March 2024.
2.2The Committee received one submission and held a public hearing in Canberra on 20 May 2024. A list of submissions can be found at Appendix A. The hearing and witnesses are listed at Appendix B. The transcript of evidence from the public hearing can be accessed through the Committee’s website.
Overview
2.3The proposed major treaty action (Category 1) would give effect to the Agreement between the Government of Australia and the Government of the Republic of Fiji on Cooperation in the Field of Defence and the Status of Visiting Forces (the Agreement), signed by Australia and Fiji in October 2022.
2.4The Agreement would recognise Fiji as a key strategic defence partner of Australia, build on the longstanding defence and broader bilateral relationship between the two countries, and contribute to a shared vision for security and stability in the Indo-Pacific region.
Background
2.5The mutually beneficial defence relationship between Australia and Fiji has been formalised through a Defence Cooperation Program (DCP) since 1983. Australia assists Fiji to build its defence capability through the DCP by providing military advice, equipment, and training to the Republic of Fiji Military Forces (RFMF). Australia and Fiji committed to strengthening their bilateral relationship through the Vuvale Partnership in 2019 and to enhanced security cooperation in 2023.
2.6Australia is party to seven other reciprocal status of forces agreements and one non-reciprocal agreement. JSCOT has recently inquired into another status of forces agreement, with Timor Leste recommending ratification of the treaty. If ratified, this status of forces agreement with Fiji will be Australia’s eighth reciprocal agreement.
Justifications
2.7The purpose of the Agreement is to enable more frequent and sophisticated defence cooperation between Australia and Fiji. This may include working together on maritime security issues, humanitarian assistance and disaster relief, peacekeeping operations, co-deployments, and the training of military personnel.
2.8The Agreement provides a comprehensive, reciprocal, and legally binding framework for the status of visiting forces and civilians (including dependents), and information sharing between the two countries while present in the territory of the other one for the purposes of mutually determined cooperation activities. Parties would bear their own costs for cooperative activities unless they agree otherwise.
Obligations
2.9The Agreement includes provisions concerning:
- the protection of any classified or sensitive information exchanged
- the request of facilities and related services by the sending State, and the reasonable efforts of the receiving State to address those requests
- respect for local law — visitors would be subject to the laws and regulations of the receiving State, but the sending State would have responsibility for administrative and disciplinary matters concerning the visiting force or civilian component, subject to certain conditions:
- the receiving State would have criminal jurisdiction over the sending State’s visiting force and civilian component with respect to offences committed in the receiving State that are punishable by the law of the receiving State but not by the law of the sending State
- the sending State would have criminal jurisdiction over its visiting force and its civilian component with respect to offences committed in the receiving State and punishable by the law of the sending State but not by the law of the receiving State
- the sending State would have the primary right to exercise its jurisdiction for offences against its property, security or members of its visiting force or civilian component, while the receiving State has the primary right to exercise jurisdiction over all other offences
- both states would be required to cooperate in the arrest of members of their force or civilian component and in handing them over to the authorities of the party entitled to exercise jurisdiction
- there would be procedural safeguards in respect to criminal proceedings pursuant to the international law obligations of the receiving state and no less than that provided to its nationals. Proceedings must only be commenced in the courts of ordinary jurisdiction of the receiving State and must not take place under their military jurisdiction. Any person convicted or acquitted for an offence by one Party cannot be retried by the other Party for an offence that is substantially the same
- arrangements to facilitate defence cooperation activities, including:
- diplomatic clearances and the movement of personnel, aircraft, vessels, vehicles, weapons, ammunition and other dangerous or prohibited items and other goods free of duty, excise, or tax
- personal taxation arrangements to avoid double taxation
- confirmation that the visiting force may wear their uniform while carrying out official duties
- requiring both parties to ensure the security of installations and areas made available to the visiting force — the sending State would have the right to maintain military police order within the visiting force, while the receiving State would be responsible for external security
- the mutual determination of exemptions from registration and licensing laws for official vehicles, aircraft, and vessels, and allowing personnel to drive with a permit or licence issued by the sending State
- allowing members of the visiting force with relevant professional, technical and trade licences to conduct their official duties without requiring permission from the receiving State
- requiring the sending State to only install communication systems with the permission of the receiving State and only within prescribed frequencies — these requests must be dealt with fairly and quickly and both parties would be required to avoid interference with each other’s communications networks
- requiring the sending State to comply with the biosecurity laws of the receiving State and to meet the costs of doing so
- requiring the sending State to ensure its members are medically and dentally fit to do their work, and to pay for any medical and dental costs incurred by the receiving State
- requiring both Parties to act in a way that promotes the protection of the environment and cultural heritage of the receiving State, and for the sending State to address any damage or potential damage made to the environment, cultural heritage, and human health and safety of the receiving state
- allowing for the sending State to be involved in the search and recovery for any of their deceased members’ remains, and for the repatriation of those remains
- requiring that any accidents involving aircraft and vessels of the sending State be investigated in a manner consistent with international law and the laws and regulations of the receiving State:
1where an accident involves planes or ships from both States, then a joint investigation would be conducted
2members of the visiting force would secure the accident site and take custody of all wreckage, wherever possible and consistent with the laws and regulations of the receiving State
- the requirement that both Parties waive all claims for loss, damage, maritime salvage and injury and death incurred through official duties, subject to certain conditions:
- where both Parties agree that a claim arises from a reckless act or omission, gross negligence or wilful misconduct of a Party’s military or civilian personnel, the Party to whom that member belongs would be solely responsible for the claim, and all other claims would be settled through consultation
- where a third-party claim is brought because of an act or omission, this would be settled or adjudicated in accordance with the receiving State’s laws:
1the receiving State would make any payments arising from such a claim and this would be reimbursed by the sending State
2the sending State would forfeit the right to claim immunity from the civil jurisdiction of the courts of the receiving State with respect to any act or omission by a member of its visiting force or civilian component in the receiving State and, unless otherwise agreed, Parties must not indemnify contractors against third party liability claims
3the sending State would be required to assist the receiving State to take possession of the property of a member of the visiting force or civilian component that is subject to compulsory execution under the laws of the receiving State and within an area in use by the visiting force and its civilian component
4both parties would, to the extent permitted by their laws and regulations, cooperate in the collection and production of evidence for the purpose of ensuring a fair hearing and disposing of claims in accordance with the agreement
- any dispute regarding the interpretation or the implementation of the agreement would be resolved solely by consultation and negotiation between the Parties and would not be referred to any third party or tribunal.
Implementation
2.10Cooperative activities are to be implemented by the national defence organisation of each party. The Government has said that if any legislative or regulatory action is required it would be completed by the time of entry into force. Further, the Government notes that the extent to which provisions of the Agreement are implemented by the Defence (Visiting Forces) Act 1963, Fiji has been declared in Schedule 2 of the Defence (Visiting Forces) Regulations 1963 as a country to which provisions of the Act apply.
Costs
2.11Each party must bear their own costs of participation in cooperative activities unless otherwise determined by the parties.
Issues
Upgrade and streamlining of the relationship
2.12The Committee observed that the Agreement represents an upgrade in the relationship between Australia and Fiji particularly with respect to the potential for defence and humanitarian disaster relief management cooperation. The Committee noted that this Agreement streamlines the defence relationship between Australia and Fiji.
2.13Previously under the DCP and the relevant MOU from 1986, this framework enabled cooperation and engagement, but it required a novel set of specific terms and conditions for every instance where there would be cooperation or working in one another’s country. This Agreement however puts in place a stable, permanent framework. At the public hearing, the Department of Defence (DOD) supported this assessment of the Agreement.
Relationship with the Vuvale partnership
2.14The Committee inquired into the relationship between the current agreement and the Vuvale partnership. The Department of Foreign Affairs and Trade (DFAT) noted that the first version of the Vuvale partnership was signed in 2019 and was ‘renewed and elevated’ in 2023. DFAT explained that this partnership has support across both sides of the government in Fiji.
2.15DFAT explained that Fijian Prime Minister Rabuka and the opposition leader who was the original signatory of the 2019 Vuvale partnership both spoke in the Fijian parliament and expressed their strong support for Australia and Fiji’s defence cooperation pursuant to pillar 3 of the Vuvale partnership.
Other status of forces agreements
2.16The Committee inquired into other status of forces agreements that have been entered into by Australia. The DOD explained that there are currently seven reciprocal status of forces agreements that have entered into force, namely with Papua New Guinea, Singapore, Malaysia, New Zealand, France, Philippines and Japan.
2.17In addition, the Committee heard that there is one non-reciprocal agreement that has entered into force with the United States (US). The US agreement is not reciprocal because it relates to the presence of US forces in Australia. Further, there are three agreements that have been signed but have not yet entered into force with Timor-Leste (previously inquired into by JSCOT), Fiji (the subject of this inquiry) and the United Kingdom.
Application of laws
2.18The Committee discussed the application of the law pursuant to the Agreement with respect to how visiting forces from Fiji in Australia or from Australia in Fiji would be dealt with as far as the application of either country’s law. The Committee noted the issue of the death penalty in a previously considered status of forces agreement with Japan. The DOD explained that Fiji is an abolitionist state therefore issues relating to the death penalty do not arise.
2.19The DOD explained that the arrangements for the disposition of jurisdiction over criminal and disciplinary matters within the territory of the receiving state under this agreement are similar to other status of forces agreements Australia has entered into. Matters are divided up between exclusive jurisdiction of each state and instances where concurrent jurisdiction would be disposed.
Human rights vetting
2.20The Committee inquired into how issues relating to human rights violations by members of the armed forces of a partner country are managed through status of forces agreements or otherwise through the Australian Defence Force (ADF) or DFAT, particularly for example where the relationship includes instances where a status of forces agreement results in one nation’s defence force personnel being loaned to another in instances where there may be a human rights concern.
2.21In a submission to the inquiry, Human Rights Watch urged the Committee to ‘include human rights vetting in the proposed cooperation agreement with the Fijian government’, noting allegations of human rights abuses by a Fijian Colonel.
2.22Human Rights Watch argue that training by, and cooperation with, the ADF ‘bestows legitimacy and professionalism on those who receive it. The Australian government should be extremely careful not to legitimize anyone credibly accused of serious abuses.’ Further, ‘It erodes Australia's credibility and risks implicating Australian soldiers indirectly- or possibly directly- in crimes or violations.’
2.23At the public hearing, Human Rights Watch said that they recommend a human rights vetting clause be added into the Agreement which would require that people being trained by or working with the ADF are vetted. Further, a vetting clause would prohibit Australia ‘from providing assistance and training to any Fijian military unit or individual security force member where there is credible information implicating them in gross violations of human rights’.
2.24That would be the case, ‘unless the Fijian government has taken steps to remediate and address the abuses and hold those responsible to account.’ Human Rights Watch further said that a clause as suggested should become standard in all bilateral security force agreements without an overarching legislative or policy requirement for mandatory security force vetting.
2.25At the public hearing, the DOD explained that in status of forces agreements their nature does not specify the way in which each state decides what activity will take place in its territory and that these are national issues for national consideration, not treaty issues. The DOD said that matters such human rights concerns of particular individuals are policy issues for the Department in relation to the kinds of individual that are allowed to enter Australia whether under a proposed treaty agreement or under defence cooperation MOUs that Australia has with a range of countries.
2.26The DOD said that as a result of the Fiji human rights situation, the Department ‘has strengthened its process for appointing international embedded and attached foreign military staff, and it will now include additional checks.’ The DOD explained that their processes had been improved to ensure that character assurances are given as well as to ensure that Australia meets the requirements of the character assurances it undertakes for commanders. The DOD said these additional vetting processes will ensure that they are taking in the concerns addressed by Human Rights Watch.
Pacific Islands sovereignty and territorial integrity
2.27The Committee inquired into the protection of Pacific sovereignty and territorial integrity through this Agreement. The DOD said: ‘I think the [Agreement] is about sovereignty. The [Agreement] enables both of our nations as a partnership to work together to maintain our integrity and our sovereignty.’
2.28Further, the Committee heard that ‘the [Agreement] is a way in which we are able to cooperatively work together to ensure that each nation's sovereignty and each nation's considerations are taken into account, and this [Agreement] will strengthen the sovereignty of both of our nations working in partnership for security.’
2.29The DOD said with respect to the issue of sovereignty, ‘The territorial integrity of a nation is a national government responsibility. [The Agreement] does not impinge on anyone's sovereignty. Australia cannot tell Fiji how to do its business, and Fiji cannot tell Australia how to do its business. Ultimately, the governments of the day in both nations have the right to uphold security.’
2.30The DOD further said, ‘Ultimately, when it comes to our activities under the [Agreement], it is about mutually cooperative activities… At the end of the day we cannot tell each nation how to maintain its own sovereign territorial rights.’
Committee comment
2.31The Committee notes that Australia and Fiji have a strong bilateral relationship which is further enhanced by this Agreement. The two countries engage on security concerns, people-to-people links, economic issues, development and international cooperation. Fiji is a key strategic defence partner. The Committee observes that Australia also engages with Fiji in regional and multilateral forums with both countries being members of the Pacific Islands Forum and the United Nations.
2.32The Committee believes that status of forces agreements are an important element of maintaining and building Australia’s defence relationships with other countries. The Committee heard during the inquiry that Australia is a party to seven reciprocal and one non-reciprocal status of forces agreements that have entered into force.
2.33The Agreement provides a comprehensive, reciprocal, and legally binding framework for the status of visiting forces and civilians (including dependents), and information sharing between the two countries while present in the territory of the other one for the purposes of mutually determined cooperation activities.
2.34The Agreement also aims to enable more frequent and sophisticated defence cooperation between Australia and Fiji. This includes collaboration on maritime security issues, humanitarian assistance and disaster relief, peacekeeping operations, co-deployments, and the training of military personnel.
2.35Key issues raised during the inquiry included the upgrade and streamlining of the defence relationship between Fiji and Australia, the relationship between the Agreement and other agreements between the two countries, the application of laws in the respective countries, human rights vetting of military personnel, and Pacific Islands sovereignty and territorial integrity. The Committee believes that these issues were adequately addressed by the inquiry process.
2.36The Committee supports the Agreement between the Government of Australia and the Government of the Republic of Fiji on Cooperation in the Field of Defence and the Status of Visiting Forces and recommends that binding treaty action be taken.