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Exchange of Letters Constituting an Agreement between the Government of New Zealand and the Government of the Solomon Islands on Arrangements for the visit by a New Zealand Defence Force Contingent to Solomon Islands for Exercise Tropic Twilight 96 [1996] PITSE 2 (15 August 1996)

EXCHANGE OF LETTERS CONSTITUTING AN AGREEMENT BETWEEN THE GOVERNMENT OF NEW ZEALAND AND THE GOVERNMENT OF SOLOMON ISLANDS ON ARRANGEMENTS FOR THE VISIT BY A NEW ZEALAND DEFENCE FORCE CONTINGENT TO SOLOMON ISLANDS FOR EXERCISE TROPIC TWILIGHT 96

(Honiara, 15-20 August 1996)

ENTRY INTO FORCE: 20 AUGUST 1996

No. 1

His Excellency Mr Rhys Richards
New Zealand High Commissioner to Solomon Islands

to

The Honourable Mr Danny Philip
Minister of Foreign Affairs

New Zealand High Commission
Honiara

15 August 1996

I have the honour to refer to the talks held between officials from New Zealand and Solomon Islands in May 1996 concerning the visit of a New Zealand Defence Force contingent to Solomon Islands for Exercise TROPIC TWILIGHT 96 to be held between 26 August and 15 September 1996. The purpose of the exercise is to give New Zealand service personnel practice in independent low-level military operations in a tropical environment, to provide limited training assistance to Solomon Islands Police National Reconnaissance and Surveillance Force (NRSF), and to carry out Civil Aid Tasks (CAT).

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 135 New Zealand Army personnel, accompanied by ten Republic of Fiji Military Forces personnel to Solomon Islands during the period of 26 August to 15 September 1996 to take part in Exercise TROPIC TWILIGHT 96. An advance party of two New Zealand Army personnel will deploy by civilian aircraft to arrive in Solomon Islands no later than 22 August 1996. The main body will deploy to and from Solomon Islands by RNZAF Hercules C130 and Boeing 727 aircraft, arriving no later than 27 August 1996. The main body will include:

a. An Exercise Group (Ex Gp) comprising of approximately 135 combat and support personnel who will train on Guadalcanal Island. The Ex Gp will establish and operate from a base camp at Tenaru Beach near Henderson Airfield and will conduct in theatre indoctrination training prior to a tactical exercise in the vicinity of the Lungga Valley which will involve the entire New Zealand Contingent and focus around four platoons of approximately 25 personnel conducting jungle counter revolutionary training using blank ammunition. Post exercise administration will occur at the completion of the tactical exercise and be in the vicinity of the base camp.

b. A number of CAT teams, comprising certain members of the New Zealand Contingent, will undertake minor CAT during the first seven to ten days of the deployment. These may include the following:

(1) Improving of the adventure playground at the Honiara Town Council.

(2) Repair of some government vehicles.

(3) Training assistance to the NRSF including defensive driving, weapons inspection and an attachment to the Police Explosive Ordnance Disposal (EOD) Team.

(4) Minor maintenance including painting, carpentry, electrical work and plumbing, to selected buildings and schools in the vicinity of Honiara, Tenaru and Koli village.

(5) Construction of a footbridge in Rove Village.

(6) Vaccination and health check in the Malatoma and Turanana areas.

(7) Dental work with a Honiara oral surgeon.

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

a. "New Zealand Contingent" means those armed forces of New Zealand who will be visiting Solomon Islands for the purpose of taking part in Exercise TROPIC TWILIGHT 96, and includes ten members of the Republic of Fiji Military Forces accompanying those forces.

b. "New Zealand Service Authorities" means the authorities empowered by the law of New Zealand to exercise command and control over the members of the New Zealand Contingent.

c. "Solomon Islands Authorities" means the authorities from time to time designated by the Government of Solomon Islands for the purpose of exercising the powers in relation to which the term is used.

d. "Training" means the conduct of individual and combined training between members of the New Zealand Defence Force and the NRSF in Solomon Islands.

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

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

a. Exercise participants as agreed to at the New Zealand Army and NRSF planning conferences and exercise reconnaissance and comprising a small number of NRSF and Liaison Officers.

b. A suitable base camp and post exercise area at Tenaru Beach for tents, as agreed to at the planning conferences and exercise reconnaissance.

c. Transport as agreed to at the planning conferences and exercise reconnaissance.

d. Access to training areas in order to conduct the exercise, as agreed to at the planning conferences and exercise reconnaissance. Use of areas for training shall be in accordance with the regulations laid down by the Government of Solomon Islands.

e. Storage facilities as determined by the reconnaissance party.

f. The Henderson Airport Fire Tender to deliver water on a daily basis to the base camp.

g. Communications including radio frequencies and access to telephones.

4. The Government of Solomon Islands shall not levy any charges against the Government of New Zealand for the use of Solomon Islands transport, accommodation, airport facilities, military or civil facilities, or land, in connection with the conduct of Exercise TROPIC TWILIGHT 96.

5. The Solomon Islands 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 Solomon Islands on the basis of:

a. A personal identity card issued by the New Zealand Service Authorities showing the 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 to 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 Solomon Islands. The Government of Solomon Islands 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, except for the purchase of some minor items such as bread and fruit.

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 Solomon Islands Authorities in advance of Exercise TROPIC TWILIGHT 96. Official documents of the New Zealand Contingent shall not be subject to customs inspection. The New Zealand Contingent shall provide to the Solomon Islands Authorities a list of weapons by type and serial number prior to the commencement of the exercise.

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

10. The Solomon Islands 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. Additionally, upon identification of registration numbers, the Solomon Islands Authorities shall waiver the requirement for vehicle licenses and registration of any New Zealand vehicles that are used for the purposes of conducting Exercise TROPIC TWILIGHT 96.

11. The New Zealand Contingent shall provide their own 24 hour and ten man ration packs which shall comply with the agricultural requirements of Solomon Islands.

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

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

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 purpose of Training;

b. outside such areas, subject to the approval of the Solomon Islands 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 Solomon Islands, 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 Solomon islands.

b. The Solomon Islands 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 Solomon Islands and punishable by the law of Solomon Islands, and the right to exercise exclusive jurisdiction over the members of the New Zealand Contingent with respect to offences punishable by the law of Solomon Islands 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 an official duty;

(2) In the case of any other offences committed within the territory of Solomon Islands, the Solomon Islands 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 Solomon Islands 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 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 Solomon Islands, unless they are part of the New Zealand Contingent.

d. The New Zealand Service Authorities and the Solomon Islands 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 for in the above paragraphs and, subject to paragraphs e. and f. of this clause, in handing them over to the Authorities that are to exercise jurisdiction in accordance with the above paragraphs.

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

f. Where the Solomon Islands Authorities have arrested a member of the New Zealand Contingent taking part in Exercise TROPIC TWILIGHT 96, the Solomon Islands Authorities shall if so requested release him or her to the custody of the New Zealand Service Authorities in Solomon Islands pending completion of trial proceedings provided that he or she shall, on request, be made available to the Solomon Islands Authorities.

g. The New Zealand Service Authorities and the Solomon Islands Authorities shall assist each other in the carrying out of 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 Solomon Islands 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 Solomon Islands court, and has been convicted or acquitted (including any other final disposal of a charge), he or she may not be tried again for the same or substantially the same offence by either Government: this paragraph shall not prevent the New Zealand Service Authorities from trying or dealing with a member of the New Zealand Contingent for any violation of rules of discipline arising from an act or omission which constituted an offence for which he or she was tried under Solomon Islands law.

j. Where a member of the New Zealand Contingent is prosecuted under the jurisdiction of Solomon Islands 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 Solomon Islands 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 Solomon Islands 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 NRSF or the EOD; or

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

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 TWILIGHT 96.

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 Solomon Islands, arising out of an act or omission of a member of the New Zealand Contingent done in the performance of official duty that results in:

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

(2) damage to or loss of property of any third party in Solomon Islands; 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 Solomon Islands that 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 Government of Solomon Islands 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 Solomon Islands.

b. Where:

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

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

the Government of Solomon Islands shall settle such claims by paying such reasonable compensation as the claimant is entitled to under the law of Solomon Islands. 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 Government of Solomon Islands 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 clause 19 (d) of this Agreement.

d. The cost incurred in satisfying third party claims shall be distributed in the proportion of 25 percent chargeable to the Government of Solomon Islands 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 Government of Solomon Islands 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 Government of Solomon Islands by the Government of 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 Solomon Islands; 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 Solomon Islands.

20. The New Zealand Service Authorities and the Solomon Islands 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 Solomon Islands;

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 Solomon Islands.

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

26. If the foregoing is acceptable to the Government of Solomon Islands, I have the honour to propose that this Letter, 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.

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

RHYS RICHARDS
High Commissioner

No. 2

The Honourable Mr Danny Philips
Minister of Foreign Affairs

to

His Excellency Mr Rhys Richards
New Zealand High Commissioner to Solomon Islands

Ministry of Foreign Affairs
Honiara

20 August 1996

Dear Your Excellency,

Further to my letter ref. No. FA12/3/17 dated 20 August 1996 and your High Commission's subsequent latest Diplomatic Notes Nos. 96/23 dated 15 August 1996 and 96/24 dated 15 August 1996 on the above matter.

This letter serves to confirm and advise that the previous draft text has now been accepted by Solomon Islands Government as the agreed text for the formal Exchange of Letters. Also, the letter ref. no. 26/7/8 dated 15 August 1996 from the New Zealand High Commissioner and this current reply constitutes the formal understanding and Agreement between the Government of New Zealand and Government of Solomon Islands for Exercise Tropic Twilight 96.

Yours sincerely

DANNY PHILIP (MP)
Deputy Prime Minister
Minister of Foreign Affairs