Agreement between the Government of Australia and the Government of the French Republic regarding the Provision of Mutual Logistics Support between the Australian Defence Force and the French Armed Forces
The purpose of the Agreement between the Government of Australia and the Government of the French Republic regarding the Provision of Mutual Logistics Support between the Australian Defence Force and the French Armed Forces (the proposed Agreement) is to establish basic terms, conditions and procedures for the mutual provision of logistic supplies and services to the military forces of Australia and France.
The proposed Agreement is necessary because:
… French law requires a treaty-level agreement whereas other countries have a different legal system and we have not necessarily needed to establish such a treaty.
According to the National Interest Assessment (NIA), the proposed Agreement ‘aligns with’ Australia’s other military logistics support agreements.
The proposed Agreement enables one Party to provide logistic services in return for either a cash payment or the reciprocal provision of logistic supplies and services of equal value to the other Party.
The proposed Agreement applies to:
… the reciprocal provision of logistics supplies and services between Australian and French defence forces during combined exercises and training, operational deployments or other cooperative efforts such as peacekeeping operations, humanitarian and disaster relief operations and communication coordination of routine activities such as ship and aircraft visits.
The proposed Agreement defines logistic support as:
transportation of personnel and equipment;
petroleum, oils and lubricants;
temporary use of facilities;
airport and sea port services.
The proposed Agreement explicitly excludes the exchange of weapons systems, major end items of equipment, missiles or guided weapons and the transfer by either Party of any items which would be prohibited by the national laws and regulations of Australia or France.
The proposed Agreement also obliges each Party to provide logistic services in accordance with international laws.
According to the Department of Defence:
The benefit of having a standard agreement is to streamline the routine processes between us that otherwise would be dealt with on a case-by-case basis, with logistics arrangements needing to be developed for exchange of support for each exercise and activity.
The proposed Agreement is explicitly limited to providing logistical assistance in ‘cooperative’ situations.
A Party can only request logistics support if the Party is unable to obtain that support through its own military channels or from local resources.
How the proposed Agreement works
Emphasising the principle of reciprocity and mutual consent, the proposed Agreement provides that each Party make its best efforts under the terms of the proposed Agreement, and consistent with national priorities, to satisfy requests from the other for logistic supplies and services …
The proposed Agreement does not bind either Party to consent to each request:
… If a request is made and we feel that our own needs would be degraded by satisfying a French request, then we are able to not proceed with their request. Similarly, if a request is made which is counter to our own national policy or international obligations, we can likewise reject such a request.
The proposed Agreement contains two mechanisms under which logistics support can be provided: Standard Operating Procedure (SOP) or Written Supplementary Arrangements.
SOP can be negotiated on Australia’s part by the Headquarters Joint Operations Command, Fleet Forces Command, Air, and Special Operations Headquarters, the Service Headquarters and Joint Logistics Command.
On France’s part, SOP can be negotiated by the Joint Defence Staff, or by the Armed Forces in New Caledonia.
Written Supplementary Arrangements may be negotiated on Australia’s part by Headquarters Joint Operations Command, Fleet Forces Command, Air, and Special Operations Headquarters, the Service Headquarters and Joint Logistics Command.
For France, Written Supplementary Arrangements can be negotiated by the Joint Defence Staff.
The proposed Agreement states that the price of equipment and services provided under the Agreement are determined by the supplying party in accordance with the prices applicable to its own forces at the time of supply.
The method of payment (as discussed earlier, either in cash, by exchange in kind, or by exchange of equal value) is determined through mutual agreement.
In the event of a cash reimbursement, the supplying Party will provide an invoice and supporting documentation. The requesting Party must then settle the account within 60 days of the receipt of the invoice. If payment is not made within 60 days, a penalty fee for late payment will be applied.
A requesting Party can make a payment in kind for logistics support from the requested Party. Payment in kind involves identical or substantially the same logistics support provided by the requested Party.
The requesting Party must provide this exchange in kind within 90 days of the original transaction. If this requirement is not met, then the method of payment reverts to a cash reimbursement.
In the event that logistics support is provided on the basis of equal value exchange, then the requesting Party must provide logistics support to the monetary value of the support provided by the requested Party within 90 days. Failure to do so will result in the method of payment reverting to a cash payment.
The proposed Agreement also permits the loan of equipment between the Parties with rental fees negotiated by mutual agreement.
The proposed Agreement sets out procedures to be observed in the event of claims related to injuries, deaths or damage or destruction of equipment.
Claims for events that occur in the jurisdiction of either of the Parties are covered by provisions in the Agreement between the Government of Australia and the Government of the French Republic regarding Defence Cooperation and Status of Forces.
Where claims relate to events outside the jurisdiction of each Party, the following will apply:
each Party will waive claims against the other Party where those claims are the result of actions in the performance of official duties under the proposed Agreement;
each Party is responsible for settling third party claims in relation to actions undertaken by its own personnel in the performance of official duties under the proposed Agreement; and
in relation to claims of gross negligence or wilful misconduct, the Party to whom the relevant personnel belong will be responsible.
No legislative change will be required to implement the proposed Agreement.
The proposed Agreement also provides the basis for mutual logistical support between the Australian Defence Force and the French Armed Forces New Caledonia.
The French Constitution defines New Caledonia as fully part of France. The people of New Caledonia are full French citizens and elect representatives to the French Senate and French National Assembly.
In accordance with these constitutional arrangements, New Caledonia has no separate defence force. Defence forces located in New Caledonia are French and under the command of the French Joint Defence Staff in France.
The Department of Defence pointed out that ‘[t]here is no legal distinction between the references to [New Caledonia] and France.’
Including New Caledonia in the proposed Agreement is unusual because the Agreement does not place any geographic limitations on where logistic support can be provided.
In other words, it is not necessary for the proposed Agreement to specifically identify New Caledonia.
The Department of Defence argued that the specific inclusion of New Caledonia was ‘a matter of focus of attention,’ and:
[The French] have robust capability, particularly in New Caledonia. Over recent years, particularly around humanitarian assistance and disaster relief activities, we've been working more and more in partnership with the French forces in New Caledonia.
New Caledonia is currently going through a process to determine whether it will become an independent nation. A referendum on independence took place in November 2018, at which the population voted to remain part of France. Further referenda are likely to be conducted in 2020 and 2022. The referendum process has largely been peaceful.
However, an independence movement in the 1980s resulted in a number of deaths and some civil unrest. France declared a state of emergency in New Caledonia for six months in 1985 as a result of the civil unrest.
Neighbouring Pacific Island nations support the independence movement in New Caledonia through the Melanesian Spearhead Group.
In relation to whether Australia would provide logistical assistance to France in relation to civil unrest in New Caledonia, the Department of Defence noted:
Should France make a request for Australian involvement, then that would be a policy decision made by the government of the day. Certainly this agreement would not oblige us to either assist within that activity or necessarily support that activity.
Civil unrest in New Caledonia appears unlikely. However, this is a sensitive time for New Caledonia and its Pacific Island neighbours. Referencing New Caledonia in the proposed Agreement at this time, and when the reference is unnecessary, may be misconstrued by Pacific Island nations.
In relation to whether Pacific Island nations have been appraised of the proposed Agreement, the Department of Foreign Affairs and Trade (DFAT) advised the Committee that it was:
… not aware of any … conversations that have happened with other Pacific nations in relation to this particular agreement.
The Committee suggests that it might be in Australia’s interests to advise Pacific Island nations of the proposed Agreement and its specific reference to New Caledonia in advance of the proposed Agreement coming into force.
With that exception, the Committee believes the proposed Agreement is in Australia’s interest and recommends that binding treaty action be taken.
The Committee supports the Agreement between the Government of Australia and the Government of the French Republic regarding the Provision of Mutual Logistics Support between the Australian Defence Force and the French Armed Forces and recommends that binding treaty action be taken.