Status of Forces

Introduction

For the Australian Defence Force (ADF) “a SOFA is an internationally recognised means of providing for the presence of one country’s visiting forces in the territory of another country. A SOFA establishes conditions for the presence of visiting personnel and assets in the host country. It addresses issues such as jurisdiction, claims, immigration requirements and customs duties. Australia usually seeks to conclude a SOFA to cover any overseas operational deployment of ADF personnel or assets.”

Government sources

Submission by Attorney General’s Office to Senate inquiry on peacekeeping operations, 2007

“The privileges and immunities of deployed personnel are typically provided in a separate international arrangement made between the deploying State and receiving State (known as Status of Forces Arrangements), though in some cases such as the Solomon Islands they are incorporated in a broader agreement or arrangement dealing with the deployment as a whole. Consideration is also given to the extent to which immunities made at an internationally have effect in the domestic law of the receiving State. The legal framework of some States provide for the automatic incorporation of international obligations into their domestic law.

“Other States require that international obligations be implemented into domestic legislation in order to have effect in the domestic legal system. Similarly to Australia, the Solomon Islands falls into this second category. Accordingly, legislation was enacted in the Solomon Islands – the Facilitation of International Assistance Act 2003 – to implement domestically the provisions of the Treaty which authorised the deployments of Pacific Island Forum countries in the Solomon Islands, including those provisions conferring immunity on the Regional Assistance Mission to Solomon Islands (RAMSI) personnel.

“Where deployed personnel are granted privileges and immunities with respect to acts done in the course of the deployment, it is established practice to apply a body of Australian criminal law to those persons. There are two reasons for this. The first is that unless a body of criminal law is applied, then a deployed person might escape the consequences for a criminal act which they have committed altogether. Secondly, the immunity within the receiving State is in some cases conditional upon Australian criminal law coverage of deployed Australian personnel. For example, the immunity of Australian personnel in RAMSI in relation to acts not done in the course of duty is dependent on an assertion of Australian jurisdiction over such acts.

“In this respect, the Attorney-General is responsible for the administration of the Crimes (Overseas) Act 1964. This Act provides for the application of Australian criminal law to acts committed overseas by Australian citizens and residents in specific circumstances, including where the Australians are working overseas under relevant arrangements between the Australian Government and the United Nations or a foreign country. Other legislation in the form of the Defence Force Discipline Act 1982 applies Australian criminal law to Australian Defence Force personnel deployed overseas. Through both pieces of legislation, Australia ensures accountability for the actions of its deployees as well as ensuring appropriate protections for deployees from the threat of spurious or vexatious legal proceedings in another State.”