The Kingdom of the Netherlands
and
Australia (hereinafter: “the Parties”)
Noting the Agreement between the Kingdom of the Netherlands and Ukraine on the International
Mission for Protection of investigation, signed on 28 July 2014;
Noting the Joint Investigation Team (JIT) conducting the criminal investigation into
the downing of MH17 pursuant to the JIT Agreement comprises the investigative authorities
of Australia, Belgium, Malaysia, the Netherlands and Ukraine;
Noting the decision of the States participating in the JIT to support the criminal
prosecution and trial of those responsible for the downing of MH17 in the national
jurisdiction of the Netherlands;
Noting the Memorandum of Understanding between the Government of Australia, the Government of
the Kingdom of Belgium, the Government of Malaysia, the Government of the Netherlands
and the Government of Ukraine regarding political support for prosecuting the perpetrators
of the downing of flight MH17 on 17 July 2014, signed on 21 September 2017;
For the purpose of this Treaty:
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a. “the Activity” means: the activities referred to in Article 2;
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b. “AFP” means: Australian Federal Police;
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c. “Australian Personnel” means: Australian Government officials, including Australian
Federal Police and Department of Foreign Affairs and Trade officials and other civilian
officials;
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d. “VCDR” means: the Vienna Convention on Diplomatic Relations, done at Vienna on 18 April 1961.
Article 2. Scope of Activity
Australia can send, on a temporary basis, Australian Personnel and associated equipment
and assets, to the Netherlands for the purpose of providing support to the JIT, assisting
with activities and investigations relating to the downing of Malaysia Airlines Flight
MH17 and assisting with preparations for the prosecution of the perpetrators of the
downing of Malaysia Airlines Flight MH17, in so far as this may be or have been mutually
determined by the Parties.
Article 3. Applicable Laws and Regulations
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3 Each Party shall retain full national command and control over their respective personnel,
as appropriate. Neither Party shall take any administrative or disciplinary action
against the other Party’s personnel. Should it become necessary to take administrative
or disciplinary action against a Party’s personnel during the Activity, the relevant
national authorities shall take action in accordance with their national laws, regulations
and policies.
Article 4. Status of Australian Personnel
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1 Australian Personnel shall be accorded the status equivalent to that accorded to the
administrative and technical staff of a diplomatic mission of a state that is a party
to the VCDR. Should the Netherlands request the withdrawal of Australian Personnel from the Netherlands,
Australia shall comply with this request.
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2 Notwithstanding Paragraph 1, where a person who is Australian Personnel is also accredited
as a diplomatic agent of the Australian Embassy to the Netherlands with the full privileges
and immunities available to diplomatic agents under the VCDR, and where there is any inconsistency between the rights, protections and obligations
accorded to that person under the VCDR and the rights, protections and obligations
accorded to that person under this Treaty, the rights, protections and obligations
accorded to that person under the VCDR shall prevail.
Article 6. Entry and Exit of Personnel
Australian Personnel shall enjoy entry into, exit from, and movement within, the Netherlands
without delay or hindrance for the purposes of the Activity. Entry, exit and movement
of Australian Personnel shall be on the basis of passports, without the requirement
of visas. The Australian Senior Representative shall inform the appropriate authorities
of the Kingdom of the Netherlands as soon as it becomes apparent that a member of
the Australian Personnel needs to remain in the Netherlands for a period exceeding
three (3) months. The appropriate authorities of the Kingdom of the Netherlands will
provide the relevant legal documents for the purposes of the Activity to the member
of the Australian Personnel promptly and with the minimum of administrative formalities.
Article 7. Movement and Use of Assets, and Licensing
Australian Personnel and their national authorities shall be permitted to import,
export, possess, store, move and use equipment, supplies and other items, required
for the Activity, together with personal effects and items for Australian Personnel’s
own consumption or use, free of all licences, duties, taxes and charges. The exemption
from duties, taxes and charges shall not apply to the purchase of goods in the Netherlands.
Australian Personnel:
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a. shall, as mutually determined with the Netherlands, be granted the use of such bases,
training centres, police premises and other facilities for the purpose of the Activity;
and
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b. shall be entitled, at the direction of the Australian Senior Representative or other
Australian official nominated by Australia and notified to the Netherlands, and in
consultation with the relevant Netherlands authorities, to establish such temporary
facilities in the Netherlands as may be necessary for the Activity.
Australian Personnel shall be entitled to wear, while engaged in the course of the
Activity, their national uniform.
Australia shall appoint a Senior Representative (hereinafter: “the Australian Senior
Representative”) who shall be notified to the Netherlands. The Australian Senior Representative
is a member of the Australian Personnel, as defined in Article 1(c) of this Treaty. The Australian Senior Representative, or such other Australian Personnel
authorised by the Australian Senior Representative, shall be the point of contact
between all relevant Netherlands authorities and Australian Personnel who are AFP
personnel, or personnel coordinated by the AFP, in the Netherlands pursuant to the
Activity.
Article 11. Security and Safety of Personnel
The Parties shall cooperate to ensure the security of Australian Personnel and associated
assets while in the Netherlands. Guard duties and similar duties related to the security
of Australian Personnel and associated assets shall be the responsibility of the Netherlands
and shall be carried out in accordance with the laws and regulations of the Netherlands.
Article 12. Information Sharing
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1 The Parties may share information in accordance with applicable bilateral agreements
or arrangements, including those for the protection of classified information. Information
shall be used only for the purposes for which it is provided and shall not be transferred
to any third party, without the written consent of the originating Party.
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2 Neither Party shall release any information relating to the other Party’s personnel
or the victims of MH17, including personal details, names, injuries or deaths sustained,
or any other information that may be sensitive, to any person or entity, without the
prior written permission of the other Party to which the information relates.
Article 13. Territorial Application
With respect to the Kingdom of the Netherlands, this Treaty shall apply to the European
part of the Netherlands.
Article 14. Entry into Force, Amendments and Consultation
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2 Termination of this Treaty shall not affect rights and responsibilities regarding
disputes, immunities, claims and information arising from actions that have taken
place during the period in which this Treaty was in force.