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Exchange of Letters constituting an Agreement between the Government of New Zealand and the Government of the Republic of Fiji Islands on Arrangements for the visit by a New Zealand Defence Force Contingent to the Republic of the Fiji Islands for Exercise Tropic Dusk 95 [1995] PITSE 6 (29 June 1995)

EXCHANGE OF LETTERS CONSTITUTING AN AGREEMENT BETWEEN THE GOVERNMENT OF NEW ZEALAND AND THE GOVERNMENT OF THE REPUBLIC OF FIJI ISLANDS ON ARRANGEMENTS FOR THE VISIT BY A NEW ZEALAND DEFENCE FORCE CONTINGENT TO THE REPUBLIC OF THE FIJI ISLANDS FOR EXERCISE TROPIC DUSK 95

(Suva, 29-30 June 1995)

ENTRY INTO FORCE:

No. 1

Her Excellency Ms Suzanne Blumhardt
Ambassador of New Zealand to the Republic of Fiji

to

Hon Colonel Paul Manueli
Minister for Home Affairs and Immigration

New Zealand Embassy
Suva

29 June 1995

Sir,

I have the honour to refer to the talks held between officials from New Zealand and the Republic of Fiji concerning the visit of a New Zealand Defence Force contingent to the Republic of Fiji for Exercise TROPIC DUSK 95, to be held between 1 and 21 July 1995. The purposes of the exercise are to give New Zealand Service personnel practice in independent low-level military operations in a tropical environment, to undertake training assistance to the Republic of Fiji Military Forces (RFMF) and exercise with the RFMF.

I now propose on behalf of the Government of New Zealand that agreement be reached between our two Governments relating to this exercise, on the following terms:

1. The Government of New Zealand shall send a contingent of approximately 140 New Zealand Army personnel, accompanied by six Vanuatu Mobile Force personnel, to the Republic of Fiji during the period of 1-21 July 1995 to take part in Exercise TROPIC DUSK 95. An advance party of four New Zealand Army personnel will deploy by civilian aircraft to arrive in the Republic of Fiji no later than 26 June 1995. The main body will deploy to and from the Republic of Fiji by RNZAF Hercules C130 aircraft, arriving no later than 1 July 1995. The main body will include:

a. An Exercise Group comprising of approximately 130 combat and support personnel who will be based at Queen Elizabeth Barracks (QEB) in Suva. This group will conduct in-theatre indoctrination training in the vicinity of Nabukavesi, a combined force training exercise with an infantry company of the RFMF in the vicinity of Suvusavu on the island of Vanua Levu and post-exercise administration at QEB in Suva.

b. A mutual aid training team (MATT), comprising of approximately 15 personnel who will deploy in Suva to conduct a number of courses with the RFMF, including Training Development Officers' and Warrant Officers' courses, a basic Military Police course and an Advanced Instructors' course. Apart from two personnel, who will return with the main body, the MATT will return to New Zealand after the exercise has finished, on a civilian flight.

2. For the purposes of this Agreement and unless the context otherwise requires the terms set out below shall have the following meanings:

a. "Materiel", in relation to the New Zealand Contingent, means all items necessary for the equipment, maintenance, operation and support of the New Zealand Contingent.

b. "New Zealand Contingent" means those armed forces of New Zealand, who will be visiting the Republic of Fiji for the purpose of taking part in Exercise TROPIC DUSK 95, and includes six members of the Vanuatu Mobile Force accompanying those forces.

c. "New Zealand Service Authorities" means those New Zealand authorities empowered by the law of New Zealand to exercise command or jurisdiction over the New Zealand Contingent.

d. "The Republic of Fiji Authorities" means the authorities from time to time designated by the Government of the Republic of Fiji for the purpose of exercising the powers in relation to which the term is used.

e. "Training" means the conduct of combined training between members of the New Zealand Defence Force and the RFMF in the Republic of Fiji.

3. The Government of the Republic of Fiji shall make available the following support to the New Zealand Contingent:

a. Exercise participants as agreed to at the Army to Army planning conferences, being approximately an infantry company with battalion headquarters supplementation.

b. Exercise support staff as agreed to at the Army to Army planning conferences.

c. Accommodation and rations as agreed to at the Army to Army planning conferences.

d. Transport as agreed to at the Army to Army planning conferences.

e. Access to training areas, training facilities and training equipment in order to conduct the Exercise Group and MATT activities, as agreed to at the Army to Army planning conferences.

f. Storage facilities to include armouries, ammunition stores, and general storage facilities, as agreed to at the Army to Army planning conferences.

g. Communications including radio frequencies and access to telephones.

4. The Republic of Fiji authorities shall not levy any charges against the Government of New Zealand for the use of Fiji transport, accommodation, military or civil facilities, or land, in connection with the conduct of Exercise TROPIC DUSK 95.

5. The Republic of Fiji authorities shall facilitate the entry and departure of the New Zealand Contingent by permitting members of the New Zealand Contingent to enter and depart from the Republic of Fiji on the basis of:

a. A personal identity card issued by the New Zealand Service Authorities showing full name, date of birth, rank and number, Service and photograph of the holder.

b. An individual or collective movement order issued by the New Zealand Service Authorities certifying the status of the individual or group as a member of the New Zealand Contingent.

6. Passports shall not be required by members of the New Zealand Contingent for entry into the Republic of Fiji. The Republic of Fiji shall grant all members of the New Zealand Contingent exemption from departure tax.

7. The Government of New Zealand shall supply all rations and ammunition for the New Zealand Contingent. The Exercise Group will be using blank ammunition and pyrotechnics during Exercise TROPIC DUSK 95.

8. The New Zealand Contingent may import free of duty Materiel for its exclusive use or consumption, provided that a detailed list of the Materiel is forwarded to the Republic of Fiji Authorities in advance of Exercise TROPIC DUSK 95. Official documents of the New Zealand Contingent shall not be subject to customs inspection. The New Zealand Contingent shall provide to the Republic of Fiji Authorities a list of weapons by type and serial number prior to the commencement of the exercise.

9. Materiel imported free of duty under paragraph 8 may be re-exported freely.

10. The Republic of Fiji Authorities shall accept as valid, without a driving test or fee, a current driving permit or licence issued by the New Zealand Service Authorities, to a member of the New Zealand Contingent for the purpose of driving in the course of his or her duty.

11. The New Zealand Contingent shall provide their own 24 hour ration packs which shall comply with the agricultural requirements of the Republic of Fiji.

12. For the purpose of the command and control of the New Zealand Contingent, the Republic of Fiji Authorities shall permit the New Zealand Contingent to establish and operate HF and VHF radio stations, using frequencies approved and registered by the Republic of Fiji Authorities.

13. Members of the New Zealand Contingent may wear uniform when on official duty in the Republic of Fiji.

14. When authorised to do so by their orders, members of the New Zealand Contingent may possess and carry arms:

a. within exercise areas and facilities in use by the New Zealand Contingent for the purposes of Training;

b. outside such areas, subject to the approval of the Republic of Fiji Authorities.

15. The rights of the two Governments with respect to criminal and disciplinary jurisdiction over the New Zealand Contingent shall be as follows:

a. The New Zealand Service Authorities shall have the right to exercise within the territory of the Republic of Fiji all criminal and disciplinary jurisdiction conferred on them by the law of New Zealand over the members of the New Zealand Contingent, and exclusive jurisdiction over the members of the New Zealand Contingent with respect to offences punishable by the law of New Zealand but not by the law of the Republic of Fiji.

b. The Republic of Fiji Authorities shall have the right to exercise jurisdiction over the members of the New Zealand Contingent with respect to offences committed within the territory of the Republic of Fiji and punishable by the law of the Republic of Fiji, and the right to exercise exclusive jurisdiction over the members of the New Zealand Contingent with respect to offences punishable by the law of the Republic of Fiji but not by the law of New Zealand.

c. In cases where the right to exercise jurisdiction is concurrent, the following rules shall apply:

(1) The New Zealand Service Authorities shall have the primary right to exercise jurisdiction over members of the New Zealand Contingent in relation to:

(a) offences against the security of New Zealand; including acts of treason, sabotage, espionage or violation of any law relating to the protection of the official information of New Zealand;

(b) offences solely against the property of New Zealand;

(c) offences solely against the person or property of another member of the New Zealand Contingent;

(d) offences arising out of any act or omission done in the performance of official duty.

(2) In the case of any other offences committed within the territory of the Republic of Fiji, the Republic of Fiji Authorities shall have the primary right to exercise jurisdiction.

(3) If the authorities having the primary right to exercise jurisdiction decide not to do so, they shall notify the other authorities as soon as practicable.

(4) The authorities having the primary right of jurisdiction shall give sympathetic consideration to a request from the other authorities for a waiver of their right where those other authorities consider such a waiver to be of particular importance.

(5) Where the Republic of Fiji Authorities have primary right of jurisdiction they shall give sympathetic consideration to a request from the New Zealand Service Authorities for a waiver of that right where a suitable punishment can be imposed under the Service law of New Zealand.

(6) The foregoing paragraphs shall not confer any right on the New Zealand Service Authorities to exercise jurisdiction over persons who are nationals of or ordinarily resident in Fiji unless they are part of the New Zealand Contingent.

d. The New Zealand Service Authorities and the Republic of Fiji Authorities shall assist each other in arresting members of the New Zealand Contingent, where such arrest is necessary to allow the exercise of jurisdiction provided in the above paragraphs and, subject to paragraphs h. and i. of this clause, in handing them over to the Authorities which are to exercise jurisdiction in accordance with the above paragraphs.

e. The Republic of Fiji Authorities shall promptly notify the New Zealand Service Authorities of the arrest of any member of the New Zealand Contingent.

f. Where the Republic of Fiji Authorities have arrested a New Zealand Serviceman taking part in Exercise TROPIC DUSK 95, the Republic of Fiji Authorities shall if so requested release him to the custody of the New Zealand Service Authorities in the Republic of Fiji pending completion of trial proceedings provided that he shall, on request, be made available to the Republic of Fiji Authorities.

g. The New Zealand Service Authorities and the Republic of Fiji Authorities shall assist each other in carrying out all necessary investigations into offences committed by members of the New Zealand Contingent and in the collection and production of evidence relating to an offence.

h. The New Zealand Service Authorities and the Republic of Fiji Authorities shall notify each other of the disposal of all cases in which there are concurrent rights to exercise jurisdiction.

i. Where an accused has been tried in accordance with the preceding paragraphs by the New Zealand Service Authorities or by a Republic of Fiji court, and had been convicted or acquitted (which expressions shall include any other final disposal of charge), he may not be tried again for the same offence or substantially the same offence by either Government. This paragraph shall not prevent the New Zealand Service Authorities from trying or dealing with a New Zealand Serviceman for any violation of rules of discipline arising from an act or omission which constituted an offence for which he was tried under the Republic of Fiji law.

j. Where a member of the New Zealand Contingent is prosecuted under the jurisdiction of the Republic of Fiji he or she shall be entitled to be tried in accordance with generally accepted standards for criminal procedure, including, but not limited to, the right:

(1) to be tried without undue delay;

(2) if he or she considers it necessary, to have the services of a competent interpreter;

(3) to communicate with a representative of New Zealand, and, where the rules of the court permit, to have such a representative at his or her trial;

(4) to be presumed innocent until proven guilty according to law;

(5) to have legal representation of his or her own choice for his or her defence or to have free or assisted legal representation under the conditions prevailing for the time being in the part of the Republic of Fiji in which he or she is being prosecuted; and

(6) to be present at the trial and to present a defence.

k. The New Zealand Service Authorities shall notify the Republic of Fiji Authorities if any member of the New Zealand Contingent absents himself or herself without approved leave for more than 48 hours.

16. The two Governments shall waive any claim against the other for:

a. damage to, or loss of, property owned or used by its armed forces arising out of an act or omission of any member of, or other person in the service of, the armed forces of the other state done in the performance of official duty;

b. damages for personal injury or death suffered by:

(1) a member or other person in the service of the armed forces of the Republic of Fiji; or

(2) a member of the New Zealand Contingent while on official duty in the Republic of Fiji.

17. The two Governments shall consult on the settlement of claims by one against the other arising out of damage to or loss of State property other than property owned or used by their armed forces, arising out of an act or omission of any member or other person in the service of the armed forces of the other State done in the performance of official duty, where such damage or loss has occurred in the course of Exercise TROPIC DUSK 95.

18. Except in the case of claims arising under clause 16 of this Agreement, any claim:

a. made by, or on behalf of, a third party in the Republic of Fiji, arising out of an act or omission of a member of the New Zealand Contingent done in the performance of official duty, or for which New Zealand is otherwise legally responsible, resulting in:

(1) personal injury to or death of a third party; or

(2) damage to or loss of property of any third parry in the Republic of Fiji, or

b. made by, or on behalf of, a member of the New Zealand Contingent in respect of any act or omission of a third party in the Republic of Fiji which results in:

(1) personal injury to, or death of, any member; or

(2) damage to, or loss of, the property of a member;

shall be dealt with by the Republic of Fiji in accordance with the procedure in clause 19 of this Agreement.

19. The procedure for settling the third party claims referred to in clause 18 of this Agreement shall be as follows:

a. Claims shall be filed, considered and settled or adjudicated in accordance with the law of the Republic of Fiji.

b. Where:

(1) liability to pay compensation is established in accordance with the law of the Republic of Fiji; or

(2) it is acknowledged that liability to pay compensation would be established in accordance with the law of the Republic of Fiji;

the Republic of Fiji shall settle such claims by paying such reasonable compensation as the claimant is entitled to under the law of the Republic of Fiji. Such payment shall be a binding and conclusive discharge of the claim.

c. Where compensation has been paid, or is to be paid under the terms of this Agreement, the Republic of Fiji shall communicate the amount of compensation to the Government of New Zealand together with full particulars of the basis for such compensation, and a proposed distribution in accordance with paragraph 19 e. of this Agreement.

d. The cost incurred in satisfying third party claims shall be distributed in the proportion of 25 percent chargeable to the Republic of Fiji and 75 percent chargeable to the Government of New Zealand.

e. Where any other party is jointly responsible for any act or omission giving rise to a third party claim, the following procedures shall apply:

(1) The amount of compensation reimbursed to the Republic of Fiji by the Government of New Zealand under the provisions of this Agreement shall be reduced by an amount proportionate to the degree of responsibility of the other party for any such act or omission.

(2) If it is not possible to attribute responsibility specifically as between the third party and the other party, the amount of compensation reimbursed to the Republic of Fiji by New Zealand shall be reduced by 50 percent.

f. This Clause shall not apply to:

(1) Contractual claims against a member of the New Zealand Contingent in their private capacity which will be subject to the normal legal processes of the Republic of Fiji; or

(2) Claims arising out of the use of any vehicle of the New Zealand Contingent which is covered by an insurance policy taken out in accordance with the law of the Republic of Fiji.

20. The New Zealand Service Authorities and the Republic of Fiji Authorities shall cooperate in the procurement of evidence for a fair hearing and disposal of claims.

21. The Government of New Zealand shall take appropriate measures to ensure that the New Zealand Contingent:

a. respect the laws and regulations of the Republic of Fiji;

b. refrain from any activity inconsistent with the spirit of this Agreement; and

c. refrain from abusing any privileges granted under this Agreement.

22. Except as provided in this Agreement no claim for immunity by a member of the New Zealand Contingent based on his or her status as a servant or employee of New Zealand may, in respect of any claim, proceeding or action, be raised in a court of the Republic of Fiji.

23. Any matter not covered by this Agreement shall be the subject of mutually acceptable arrangements made from time to time between the parties.

24. If the foregoing is acceptable to the Government of the Republic of Fiji, I have the honour to propose that this Note, together with your reply to that effect, shall constitute an agreement between our two Governments which shall enter into effect on the date of your reply.

Accept, Sir, the renewed assurances of my highest consideration.

SUZANNE BLUMHARDT
Ambassador

No. 2

Hon Colonel Paul Manueli
Minister for Home Affairs and Immigration

to

Her Excellency Ms Suzanne Blumhardt
Ambassador of New Zealand to the Republic of Fiji

Suva

30 June 1995

Dear Ambassador,

I have the honour to acknowledge the receipt of your letter dated 29 June 1995, which reads as follows:

[As in No. 1]

I have the honour to confirm that the above proposal is acceptable to the Government of Fiji and that your letter together with this reply shall constitute an Agreement between our two Governments which shall enter into force on the date of this reply.

Accept, Excellency, the assurances of my highest consideration.

PAUL MANUELI
Minister for Home Affairs and Immigration