Agreement Between the Government of New Zealand and the Government of Australia concerning the Status of their Forces [2005] NZTS 7 (27 May 2005)

<title>Agreement Between the Government of New Zealand and the Government of Australia concerning the Status of their Forces [2005] NZTS 7 (27 May 2005)</title>
AGmEMENT BETWEEN

THE GOVE

THE GOVE

MENT OF NEW ZEALAND AND MENT OF AUST

ING THE STATUS OF THEIR FORCES


THE GOVERNMENT OF NEW ZEALAND AND THE GOVERNMENT OF AUSTRALIA ("the Parties"); HAVING REGARD to the tradition of close and friendly relations between them; DESIRING to define the status of the amed forces of one Party while in the territory

of the other Party; e

FURTHER DESIRING to make provision for the settlement of claims arising out of the presence of the amed forces of one Party while in the tenitory of the other Party; HAVE AGREED as follows: Ar%icleZ Definitions In this Agreement except wllere the contrary intention appears:

(a)

(b)

(c)

"Authorities of the Receiving State" means the authority or authorities from time to time authorised or designated under the law of the Receiving State or by fhe Government of the Receiving State for the purpose of exercisingthe powers or responsibilities in relation to which the expression is used; "Authorities of the Sending State" means the authority or authorities from time to time authorised or designated under fhe law of the Sending State or by the ent of the Sending State for the purpose of exercising the powers or responsibilities in relation to which the expression is used and includes, where applicable, the Service Authorities of the Sending State; "Civilian Component" means fhe civilian personnel accompanying a Visiting Force who are neither nationals of, nor ordinarily resident in, the Receiving State, but who are:

(i) (ii)

employed by or in the service of the Visiting Force; serving with an organisation that, with the approval of the Gove the Receiving State, is accompanying the Visiting Force; or

(d)

(iii) attached to or are accompanying the Visiting Force and, in accordance with the law of the Sending State, are subject to fhe Service Law of the Sending State; "Dependant" means a person who:

(i) is not a member of a Visiting Force or of its Civilian Component;


(ii) is neither a national of nor ordinarily resident in the Receiving State; and

(iii) is accompanyinga member of a Visiting Force or of its Civilian Component and is:

(A) (B) (C) (D) the spouseof the member; wholly or mainly maintained by themember; in the custody,care or charge of the member; or one of the family of the member residing with the member;

I

l

8

l

t 1 ' l , 1 1 l l l I l t

l E

I

i

(e)

"Member of a Visiting Force" includes a person who, in accordancewith the law of the Sending State, is serving as a member of a Visiting Force, but does not include: (i) any member of the ed forces of the Sending State who is temporarily

(ii)

attached to the amed forces of the Receiving Statein accordance with the respective laws of the Parties; or a person that the Parties mumally determineshall not be regarded as being a member of a Visiting Force for the purposes of this'Agreement;

r, ( f )

"Receiving State"means the State of the Party in whose tenritory a Visiting Force is located, whether it is stationed there or in transit; "Sending State"means the State of the P to which the Visiting Force belongs; "ServiceAuthoritiesof the Sending State" means the authorities empowered by the law of the Sending State to exercise command, control orjurisdiction over a member of a Visiting Force, or a member of its Civilian Component or i Dependant; "Service Law" means the law of the Sending Stategoverning the discipline of and the administration ofjustice within the amed forces of the Sending State; and "Visiting Force" means any body, contingent or detachment of the amed forces of one Party, who, with the consent of the other Pady,is present in the t of the other Party, provided that the Parties may mutually det bodies, contingentsor detachmentseshallnot be regarded as constituting or being included in a Visiting Force for the purposes of this Agreement.

( g ) (h)

(i)

(j)


(l)

Micle 2 Respect for law Except as otherwise provided in this Agreement or by operation of law, members

of a Visiting Force and of its Civilian Component and Dependants shall be subject to the law of the Receiving State.

(2) The Authorities of the Sending State shall take appropriate measures to ensure

that members of a Visiting Force and of its Civilian Component and Dependants:

(a) (b)

respect the law of the Receiving State; and abstain from any activity inconsistent with this Agreement. Article 3

Members of a Visiting Force may possess md c a m s when they are authorised to

do soby orders issued by the ServiceAuthoritiesof the Sending State and in circumstances approved by the Authorities of the Receiving State. Afiicle 4 Criminaljurisdiction

(1) Subject to the pro~visionsof this Article:

(a)

(b)

the Service Authorities of the Sending State shall have the right to exercise within the tenitory of the Receiving State all criminal and disciplinary jurisdiction conferred on them by the law of the Sending State over members of a Visiting Force and of its Civilian Component and Dependants, who are subject to the Swice Law of the Sending State; and the Authorities of the Receiving State shall havejurisdiction over members of a Visiting Force and of its Civilian Component and Dependants with respect to offences co itted w i t h the territory of the Receiving State and punishableby the law of the Receiving State. The ServiceAuthorities of the SendingState shall have fhe right to exercise exclusivejurisdiction over members of a Visiting Force and of its Civilian Component and Dependants, who are subject to the Service Law of the Sending State, with respect to offences punishable by the law of h e Sending Statebut not by the I'aw of the Receiving State. The Authorities of the Receiving State shall have the right to exercise exclusivejurisdiction over members of a Visiting Force and of its Civilian Component and Dependantswith respect to offences punishable by the law of the Receiving Statebut not by the law of the Sending State.

(2) (a)

(b)


(3) In cases where the right to exercisejurisdiction is concurrentthe following rules

shall apply:

(a)

the ServiceAuthorities of the Sending Stateshall have the primary right to exacise jurisdiction over members of a Visiting Force and of its Civilian Component who are subject to the ServiceLaw of the Sending State in relation to:

(i)

(ii)

offences solely against the security of the SendingState including acts of treason, sabotage,espionageor violation of any law for the protection of official information; offences solely against the property of the Sending State;

(b)

(c)

(d)

(4) (a)

(b)

(c)

(iii) offences solely against the person or property of another member of a Visiting Force or of its Civilian Component or a Dependant; and (iv) offences arising out of any act or omission done in the performance of official duty; in the case of any other offencethe Authorities of the Receiving State shall have the primary right to exercisejurisdiction; if the authoritiesof the Party having the primary right to exercise jurisdiction decide not to exercisejurisdidion, they shall notify the authoritiesof the other Party as soon as practicable; and. the authoritiesof the Party having the primay right to exercisejurisdiction shall give sympathetic consideration to a request from the authoritiesof the other Party for a waiver of the Party's right to exercisejurisdiction in cases where the authorities of the other Party consider the exercise ofjurisdiction by them to be of particular importance. Tne AppropriateAuthoritiesof the Receiving Stateand the Service Authoritiesof the Sending State shall assist each other in the arrest of members of a Visiting Force and of its Civilian Component and Dependantsin the temtory of the Receiving State and in handing them over to the authoritiesof the Party which are to exercisejurisdiction in accordancewith paragraphs (1), (2) and (3) of this Article. The AppropriateAuthoritiesof the Receiving State shall promptly notify ice Authorities of the Sending Stateof the arrest of a member of a Visiting Force or of its Civilian Component or a Dependant. The Appropriate Authorities of the Receiving State and the Service Authorities of the Sending State shall assist each other in carrying out all


(d)

(e)

(t)

-

(g)

necessw inx~estigationsinto offences committed by members of a Visiting Force and of its Civilian Component and Dependantsand in the collection and production of evidenceto the authoritiesof the Party who are to exercisejurisdiction in accordancewith paragraphs (l), (2) and (3) of this Article. Where the Authorities of the Receiving State areto exercisejurisdiction over a member of a Visiting Force or of its Civilian Component or a Dependant, they shall give sympatheticconsiderationto a request from the ServiceAuthorities of the SendingStatethat the SenriceAuthorities of the Sending Statebe entrusted with that person's custody pending conclusion of alljudicial proceedings. Upon request, the SewiceAuthorities of the SendingState shall make available, for the purposes of.investigationand trial, any person who is in their custody over whom the Authorities of the Receiving State are to exercisejurisdidion. The ServiceAuthorities of the Sending Stateand the Authorities of the Receiving State shall notify each other of the disposition of all cases in which there are concurrent rights to exercisejurisdiction. Wen a person has been tried in accordancewith the provisions ofthis Article by the Service Authoritiesof the SendingState, he or shemay not be tried again for substantiallythe same offenceby the Authorities of the Receiving State. For the purposes of this paragraph, the expression "AppropriateAuthorities of the Receiving State"means the serviceauthorities of the Receiving State, and any authorities authorisedby the law of the Receiving State and recognised by the Gov ent of the Receiving State for the pulposes of

(5)

exercising the powers in relation to which the expression is used. Whenever a member of a Visiting Forceor of its Civilian Component or a

Dependant is prosecuted or hied by the Authorities of the Receiving State, he or she shall be entitled to all generally accepted procedural safeguards.

(6) The ServiceAuthorities of the Sending State shall not cany out any sentenceof

death in the tenitory of the Receiving State. Article 5 Claims

(l) Each Party waives any claim againit the other Party in respect of

(a) loss of, or damage to (includingloss of the use of) property owned by a Party and used by its amd forces;


(b)

(c)

maritime salvage of any vessel or cargo owncd by a Party and used by its amed forces; and persona! injuv or death suffered by any mernber of, or other person in the service of, a Party's amed forces,

which anises out of any act or omission, in the tenitory of a Party or in connection with activities mutually anranged between the Parties in the territory of a Party, by a member of?or other person in the service of, the amed forces of the other Party, in the performance of official duties by that member or person.

(2) A clailn by one Party against the other Party in respect of:

(a)

(b)

loss of, or damage to (including loss of the use of) property owned by a Party, but not used by its anned forces; and maritime salvage of any vessel or cargo owned by a Party, but not used by its amed forces,

which arises out of m y act or omission, in the territory of one Party or in connection with activities mutually arranged between the Padies in the territory of one Party, by a member oi; or ofher person in the sewice of, the amed forces ~fthe other Pady, i~ the performance of oficial duties by that member or person shall be settled in accordance with paragraph (3).

(3) A claim under paragraph (2) shall be settled in accordance with the following

pmvisions: (a)

(b)

where one Party is solely liable for the loss or damage that Party shall meet the costs of the claim in hII; where the Parties arejointly liable for the loss or damage:

(i)

(ii)

where it is possible to apportion liability between theParties, each Party shall meet the portion of the costs of the claim conesponding to the degree of the Party's liability; or where it is not possible to apportion liability between the Parties, the costs of the claim shall be bome equally by the Par(ies; and

(C) iE (i)

(ii)

the Parties cannot mutually determine liability or thequantum of damages; settlement has not been reached within six months of the claim being made; or


(iii) the Parties mutually det the matter may, at the request of either Party, be referred to a single arbitrator,mutually det ined by the Parties, who holds or has held high judicial office in the Receiving State ,and the arbitrator's decisionon the matter shall be final and binding on the Parties. The remunerationof the arbitrator shall be mutually detemined by the Parties and shall together with the necessary costs incidentalto the arbitrator's performanceof his or her duties be bome equallyby the Parties. For the pulposes of paragraphs (l) and (2) of this Article, the expression "owned

(4)

by a Party" includes:

(a)

@)

(c)

in the case of a vessel, a vessel on bare boat charter to the relevant Party or requisitioned by it on bare boat terns or seized by it in prize; in the case of a vehicle or an aircraft, a vehicle or an aircraft on hire or charter to the relevant Party except to the extent that the risk of loss or liability is bome by a third party; and in the case of any otherproperty, property hired by the relevant Party except to the extent that the risk of loss or damageis bome by a third party.

( 5 ) A claim by a third party in respect of the death of or bodily injury to my person

or damage to any property which arises out of my act or omission in the temtoly of the Receiving Stateby a member of a VisitingForce or of its Civilian Componentin the perfornance of official duties shallbe dealt with by the Authorities of the Receiving Statein accordancewith the followingprovisions, unless it is mutually determined by the Parties that the claim shall be dealt with by the Authorities of fie Sending State:

(a)

(b)

(c)

(d)

the claim shall be filed, considered and settled or adjudicated in accordance with the law of the Receiving Stateapplicable to claims arising from the activities of its own the Authorities of the Receiving Stateshall notify the S of the Sending State of the particularsof the claim and shall keep the ServiceAuthorities of the Sending Stateinfomed of its dealings with the claim; the Authorities of the Receiving Stateshall observe the reasonable instructions of the ServiceAuthoritiesof the Sending State as to fhe defenceor settlementof the claim; the Authorities of the Receiving State shall not settle the claim without the prior consent of the Authoritiesof the Sending State, which shall not be unreasonablywithheld;


(e)

the cost incurred in satisfying the claim, including the reasonable costs of the Authorities of the Receiving Statein dealing with the claim, shall be apportioned between the Parties, as follows:

(i)

(ii)

where the Sending State is solely liable in respect of the claim the Sending State shall meet the costs of the claim in full; and where the Parties arejointly liable in respect of the claim or it is not possible to attribute liability in respect of the claim specifically to either Party, the costs of the claim shall be bome equally by the Pmies;

(f)

(g)

the ServiceAuthorities of the SendingStateshall reimburse the Authorities of the Receiving State the costs incurred in satisfying the claim, including the reasonable costs of the Authoritiesof the Receiving State in dealing with the claim, in the cmency of the Receiving State within sixty days of the date of settlementor determinationby adjudication of the claim; and payment of an mount in satisfaction of the claim by the Authorities of the Receiving State,whether made pursuant to a senlement or to adjudication of the caseby a competent tribunal of the Receiving State, or the final adjudication by such a tribunal denying payment, shall be binding and conclusivedischargeof theclaim.

(6) The ServiceAuthoritiesof the Sending Stateshall, at the request of the

Authoritiesof the Receiving State, aMord all necessary assistance to the Authorities of the Receiving Stateto take possession of any property of a member of a Visiting Force or of its Civilian Component or a Dependant which is subjed to compulsory execution under the law of the Receiving State and which is within an area occupied by the Visiting Force or its Civilian Component.

(7) The ServiceAuthorities of the Sending Stateand the Authorities of the Receiving

State shall co-operatein the collection and production of evidence for the purpose of ensuring a fair hearing and disposingof claims in accordance with this Article. ent of the Sending State shall not claim i unity from the civil jurisdiction of the courts of the Receiving Statein respect of any act or omission in the temtory of the Receiving Stateby a member of a Visiting Force or of its Civilian Component in the performance of official duty.

(l) The Authoritiesof the Receiving State shall facilitatethe entry of members of a

Visiting Force and of its Civilian Componentand Dependants into, and their departure from, the Receiving State.


(2)

Subjectto compliancewith the formalities establishedby the Authorities of the

Receiving Staterelating to entry and dep

,membersofaVisitingForceandofits

Civilian Component and Dependants shall be exempt fiom any requirement to apply for a visa or entry permit on entering and departingthe Receiving State.

(3) The Authoritiesof the Receiving State shall permit members of a Visiting Force

to enter into or depart fromthe Receiving State on official duty, on the basis of

(a)

(b)

a personal identity card issued by the ServiceAuphorities of the Sending Stateshowing full name, date of birth, rank and s and photograph; an individual or collectivetravel document issued by the Service Authorities of the Sending State identifyingthe individual or group as a member or members of a Visiting Force, and authorisingthe travel; and if applicable, such doc ents as may be issuedby the Authorities of the

(c)

(4)

Sending State in satisfactionof the national health and quarantine requirements of the Receiving State. The Authoritiesof the Receiving State shall p

Componentor a Dependant to enter into or depart fiom the Receiving State if it is satisfied the member of a Civilian Component or Dependant is in possession of:

(a) (b) a valid passport; and a certificateissued by the Authorities of the SendingState certifying that the holder is a member of a Civilian Componentor a Dependant.

( 5 ) Nothing in this Agreement shall confer upon any member of a Visiting Force or

of its Civilian Component or a Dependant any right to permanent residence or domicile in the Receiving State.

(6) If any person, other than a national of, or a person 0th

the Receiving State ceases to be a member of a Visitihg Force or of its Civilian Component or a Dependant, the Authorities of the SendingStateshall:

(a)

(b)

promptly inform the Authorities of the Receiving State, giving such reasonableparticulars as they may require; promptly take reasonablesteps to effect the de

tory of the Receiving State if so rquir Receiving State; and the Authofities of the

(c) meet any reasonable costs incurred by the Authorities of the Receiving Statein removing that person from the territory of the Receiving State.


(7) if the removal from the Receiving Stateof a member of a Visiting Force or of its

9 Civilian Componentor a Dependant is:

(a) (b) requested by fhe Authorities of the Receiving State;or required by the law of the Receiving State,

the ServiceAuthoritiesof the Sending State shall:

(c) promptly take reasonable steps to eeect the dep tow of the Receiving State; and e of that person from

(d) meet any reasonable costs incurredby the Authoritiesof the Receiving Statein removing that person fromthe t toy of the Receiving State.

(8) The ServiceAuthorities of the Sending State shall infom the Authoritiesof the

Receiving State, giving such reasonable particulars as may be required, of any members of a Visiting Force who, after Raving been admined to the Receiving State, absent themselves for a period in excess of forty-&@ hours, otherwisethan on approved leave.

Importation and exportation

(a)

(b)

(c)

(d)

"Duty"means atax (includingsalestax, customsduty, excise duty or excise equivalent duty and goods and servicestax), fee, chargeor levy imposed on the Import or Export of Goodsby the Authoritiesof the Receiving State, except fees, charges or levies for S "Export"in relation to Goods, means the transportationof the Goods from toy of the Receiving State to a point outsidethe t Receiving State; "Goods"means any moveable tangible property, but does not include money; and "Import" in relation to Goods, means the transportationof the Goods to the tenitory of the Receiving State from a point outsidethe t

e

Receiving State.

(2) Oficial documents under official seal comprisingthe official co

between the Authoritiesof the SendingState and a Visiting Force shall not be subject to customs inspection. n e package shall be accompanied by a certificate which states


that only official documentsare enclosed. Samples of the official seals shall be lodged with the Authorities of the Receiving State.

(3) A Visiting Force may Import fiee of Duty my Goods for the exclusive and &d

official use by the Visiting Force or its CivilianComponent. Goods which have been Imported kee of Duty under this paragraph may be freely Exported.

(4) Subject to the approval of the Authorities of the Receiving State, Goods which

have been Imported free of Duty under paragraph (3) of this Article may be disposed of in the Receiving State whether by sale or otherwise,provided that:

(a)

before doing so the Authorities of the Sending State shall first offer them for sale at a reasonable price having regard to their condition and other refevmt eircurnstmees to h e Gov ent of the Receiving State unless the latter shall have indicatedthat it is not interested in their acquisition; and in so disposingof the Goodsthe Authorities of the Sending State shall be liable to pay any Duties which, but for paragraph (3) of this Article, would be payable on such Goods if they were Imported at thedate of their disposal.

(b)

(5)

A member of a Visiting Force or of its Civilian Component or a Dependant may

Import free of Duty Goodsbeing personal effects,

iture and household goods (other

than motor vehicles, cigmes, cigars, tobacco and spirituous liquors), provided that such Goods:

(a)

are Imported at the time of firs the Receiving Stateor within Dependant, at the time of firs val of the member to take up servicein nrhs tkeheaRa or, htlt.ne of the Dependant tojoin the member

(b)

or within six mon&s therealter; md remain in the use, ownershipand possession of that member or Dependant.

(6) A member of a Visiting Force or of its Civilian Component may Import into the

Receiving Stateone motor vehicle free of Duty provided that:

(a) the vehicle remains in the use, o

(i) (ii)

aship and possession of:

that member; or with the expressapproval of the Authorities of the Receiving State,

of another member; '

during the period of two years i diately after the date of its Import; and

(b) unless the Authorities of the Receiving State ofherwise consent, where the vehicle was not in the use, ownershipor possession of the member during


the p e n d of at least three monthsi ediatelypreceding hls or her first

(7)

departurefor the Receiving State, the vehicle is Exported within two years fTomthe date of Import by that member or, if the vehiclehas been transferred to another member in accordancewith sub paragraph 6(a)(ii), by that other member. A member of a Visiting Force or of its CivilianComponent shall be accorded

such privileges in respect of the purchase of cigarettes, cigars, tobacco and spirituous liquors as may be mutually det ned by the Parties.

(8) Goodswhich have been Imported ~ eofeDuty under paragaphs (5) or (6) of his

Article: (a) (b)

may be Exported free of Duty;and may not be disposed of in the Receiving State, whetherby sale or ise, without the express approval of the Authoritiesof the Receiving state.

(9) The Authorities of fhe Receiving Statemay require amember of a Visiting Force

or of its Civilian Component or a Dependant to provide securityor undertakings for, or verification of, compliancewith the provisions of paragaphs (S), (6) and (8) of this Miele.

(1) Other than for taxes and duties for which provision is made under this

Agreement, the liabilityfor taxes or duties of a member of a VisitingForce or of its Civilian Component or a Dependant shall be governed by any agreementbetween the Partiesinrelation to such taxes or duties that has been implemented fromtime to time under h elaw of both eoun~es.

(2) Without prejudiceto paragraph (l), the Parties acknowledgethe applicability of

the Agreementbetween the Gov Zealmd for the Avoidance of D ent of Australia and h e Cov Taxation and Preventio

with respect to Taxes on Income done-atMelbo miele 9

e on 27 January 1995.

.

(l)

Foreign exchange control Subject to paragraph (2) of this ~rticle,members of a Visiting Force and of its

Civilian Component and Dependants shall remain subjectto the foreign exchange regulations of the Sending State and shall also be subject to the foreign exchange regulations of the Receiving State.


ent of the Receiving State shall freely permit theremittance into and out of the Receiving Stateof:

(a) (b)

any official funds of a Visiting Force; and any hnds derived by a member of a Visiting Force or of its Civilian Component or a Dependant from: ice wifh or employmentby a Visiting Force; or

(ii)

sources outsidethe Receiving State subjectto any law or policies of the Sending State. Phrtielle 10 Security ent of the Receiving State shall cooperate with the S

l4 ,!f L

Authorities of the Sending Statein taking such steps as may ~ o time to time be m necessary to ensure the security of:

(a)

the installations,vessels, aircraft, materiel and official information of a Visiting Force; and the members of a Visiting Force and of its Civilian Component and Dependants, and their property. ice Authoritiesof the Sending State shall have the right to maintain

military police for the maintenance of good order and discipline within the Visiting Force and, if empowered by the law of the Sending State to do so, the Civilian Component and Dependants. Such militaty police may, with the consent of and in liaison with the Authoritiesof the Receiving State,be employed outside the installationsoccupied by the VisitingForcein so far as such employment is necessaty to maintain good order and disciplineamongthemembers of the Visiting Force and, if empowered by the law of the Sending Stateto do so, the CivilianComponent and Dependants. - Article 11 Driving licencesand officialvehicles

(1)

The Authoritiesof the Receiving State shall accept as valid, without a driving

test or fee, the driving p

it or licenceissued by h e S ce Authoities of the

Sending Stateto a member of a VisitingbForcefor the purpose of driving Official Vehicles in the course of his or her official duty.

(2)

Oficid Vehicles of a VisitingForce, excludingvehicleshired in the Receiving in addition to their registration number issuedby theAuthorities of ,-.


the Sending State, a distinctivenationaliw mark but shall not be reqnird to be registered by the Authorities of the Receiving State.

(3) For the purposes of this Article, the expression "Official Vehicle" means a t 4

vehicle, including a hired vehicle, which is exclusively in the service of a Visiting Force.

A Visiting Force may, in accordancewith arrangements with the Authorities of the Receiving State, operate communications systems for official co unications- n e operation of such systems shall not be exercised in a manner likely to interferewith communication systems operated by public utilities in the Receiving Stateor licensed by the Authorities of the ReceivingState. Adicle 13 Resolution of disputesAny disputesbetween the Parties on the interpretation or applicationof this Agreement shall be resolved by consultationand negotiation and shall not be refemed to my fhird party or hbunal.

This Ag~eementmay be mended by mutual agreement of the Parties in writing. Micle 15 Entry into force and duration This Agreement shall enter into forceon m exchange of notes confirmingthat each Party has completed its domesticrequirements for the entry into force of this

Agreement. It shall remain in forceuntil 180days after one P notice in writing of its intention to terminate this Agreement. gives the other


EREOF the undersigned,duly authorised by their respective signed this Agreement.

t

DONE at Melbourne in duplicatethis twenty-ninth day of October, one thousand nine hundred and ninety-eight.

FOR THE GOVEWMENT OF NEW ZEALAND: FOR THE GOVERNMENT OF AUS M: