How your application is assessed
Applications to export controlled goods are dealt with on a case-by-case basis. The Secretary of Foreign Affairs and Trade is the authority that grants approval for the export of strategic goods.
Where an application is likely to be denied MFAT Export Controls Officers will liaise with the applicant before a final decision is made.
There is no statutory right of administrative appeal against a decision by the Secretary. However, the applicant is entitled to seek a review of any of a decision by writing to the Secretary. The applicant could also seek a judicial review through the courts.
Exporters are advised to put a caveat in sale contracts to note that the export is subject to receiving the necessary consents from the New Zealand Government. This is standard practice internationally for the export of strategic goods. The Government cannot be held liable in the event that failure to obtain a consent to export results in a breach of contract.
MFAT makes decisions about permits according to the Criteria for the Assessment of Export Applications which have been approved by the Minister of Foreign Affairs and Trade.
The criteria reflect the Government’s commitment to making responsible decisions around the export of strategic goods. The criteria are an internal guide that ensures decisions are consistent, and they provide exporters with information on what is taken into account when their application is considered.
The criteria form the basis for the risk assessment. However if your application doesn’t meet a particular criteria, this doesn’t necessarily mean it will be automatically denied. The goods, the country of destination, the end-user, the end-use, the overall situation and the various criteria are assessed as a whole to arrive at a decision.
The more detail that can be supplied by the applicant about the end-user and the end-use, the greater the likelihood that the assessment can reach a conclusion. In the absence of information the risk assessment will generally err on the side of caution.
A. Situations where an export permit will be refused
MFAT will refuse an application for a permit to export strategic goods if:
- the export would violate New Zealand’s obligations under measures adopted by the United Nations Security Council acting under Chapter VII of the Charter of the United Nations, including arms embargoes
- the export would contravene New Zealand’s other international obligations
- we have knowledge at the time of considering the application, that the goods are to be used in the commission of genocide, crimes against humanity or war crimes.
B. Risk Assessment
If the application for an export permit is not refused under section A, MFAT will undertake a risk assessment of whether:
- The goods to be exported would undermine peace and security.
- The goods to be exported could be used to commit or facilitate:
- a serious violation of international humanitarian law
- a serious violation of international human rights law
- an act constituting an offence under international conventions or protocols relating to terrorism to which New Zealand is a party
- an act constituting an offence under international conventions or protocols relating to transnational organised crime to which New Zealand is a party
- serious acts of gender-based violence or serious acts of violence against women and children.
If MFAT’s assessment is that there is a substantial risk of any of the negative consequences set out above in 1 and 2, and the risk can’t be mitigated, MFAT will refuse the application for an export permit.
C. Additional factors
MFAT will also take into account the following factors in undertaking a risk assessment for a permit to export strategic goods:
- Is there a substantial risk that the goods to be exported could be diverted or on-sold prior to, or after, delivery to their intended end-user?
- Are there any requests for restraint or expressions of concern by competent international bodies (eg United Nations Security Council, Wassenaar Arrangement) or any other arms restrictions in place?
- Would the export undercut a denial from an export control regime of which New Zealand is a member?
- Is the export consistent with decisions made by like-minded countries operating similar export controls to New Zealand?
- Is there evidence that the country of import is involved in the development of weapons of mass destruction?
- Is the export part of an existing contract that has previously been approved?
- Is the country of import involved in any conflict?
a. Issues to consider for internal conflicts:
1. the legitimacy of the government
2. factors contributing to the conflict
3. the commitment of parties to peaceful settlement.
b. Issues to consider for external conflicts:
1. the nature of the conflict under international law (eg self-defence under Article 51 of the United Nations Charter)
2. the commitment of parties to peaceful settlement.
c. How would the export contribute to the conflict in question?
d. Is there evidence that child soldiers are being used in the conflict and, if so, how would the export affect this?
8. Would the export introduce a new capability into a regional/internal security situation?
9. Would the export significantly enhance capabilities already employed (including, for instance, manpower effectiveness)?
a. How would this enhancement be perceived?
b. Could this enhancement materially affect an already unstable situation?
10. Is there potential for the goods to be used in any terrorist activity?
11. Could the export of the goods in question prejudice New Zealand's relationship with a third country?
12. Could the export compromise New Zealand’s wider defence and security interests?
13. What is the human rights record of the country of import?
14. Is there a possibility that the goods could be used in, or contribute to, an abuse of human rights?
15. What is the country of import's record in International Humanitarian Law/Law of Armed Conflict?