As officials ask the public for views on their plans to better control the export of sensitive goods overseas, there are concerns the Government is 'putting the cart before the horse' by holding off on law reform
Proposals to ensure Kiwi exporters do not contribute to human rights abuses overseas have received a mixed response, with praise in some quarters but one MP saying the Government should move faster on more significant law changes.
In February last year, 1 News reported Air New Zealand had been servicing equipment for Saudi Arabia’s navy as it took part in a blockade of Yemen, cutting off the supply of food and medicine to the country.
The Ministry of Foreign Affairs and Trade subsequently confirmed it had told the airline it did not need permits for the exports in question, and commissioned a review of its export controls regime amid wider concerns about goods heading to military regimes accused of wrongdoing.
The review, released in July last year, concluded that while foreign affairs officials had implemented the regime in line with existing legislation and policy, the framework itself fell short of best practice in several areas and was “not fit for what is likely to be an increasingly challenging future”.
The ministry is now consulting on a number of planned changes to meet some of the review’s recommendations, including the adoption of a “purpose statement”, changes to assessment criteria described as “impractically large”, and the introduction of a new transparency regime.
The proposed purpose statement says the intent of the regime is to “control the export of military and dual-use goods and technology from Aotearoa New Zealand, as well as certain other goods to military, police and other end-users, which may contribute to the detriment of our security or national interests or to human rights abuse, or contravene international humanitarian law”.
The number of criteria to be considered in each application for an export permit have been narrowed to six, with the inclusion of a specific assessment of whether the export would harm New Zealand’s reputation.
“Reliable evidence” gathered by the ministry from its diplomatic posts overseas, reports from international bodies, and intelligence from like-minded countries would be among the information used to assess applications.
“Even if a proposed export does not breach international law or directly contribute to a gross violation of human rights, it may be that a denial is still appropriate to avoid a negative impact on Aotearoa New Zealand’s international reputation.”
A transparency plan outlined in the document includes the proactive release of information related to the export controls regime’s activities and operation, regular internal audits, and periodic independent reviews.
Green Party foreign affairs spokeswoman Golriz Ghahraman said the proposals seemed like a delaying tactic to stall work on the more substantive legislative changes which were needed.
While it was good to know the ministry was “finally” moving ahead with some recommendations, Ghahraman said new legislation would provide for a more sweeping consultation process and the rigour of parliamentary debate, with policy changes then coming through that legislative framework.
“It seems like they’re putting the cart before the horse … like a ministry that’s deprioritised this piece of work after it fell off the media’s radar.”
It was important for consultation on the changes to reach those in communities most affected by the decision to grant export permits, such as Middle Eastern New Zealanders in the case of the Air New Zealand scandal.
“Sometimes it's not whether it's clearly in the black or white, and sometimes with matters in the grey, just to protect your reputation you just don't go there.” – Al Gillespie, University of Waikato law professor
University of Waikato international law professor Al Gillespie told Newsroom the changes would be “a step in the right direction” if they were all implemented, and provided further evidence the Government had not brushed aside concerns from critics of the status quo.
While the review had found those applying the rules had not necessarily done anything wrong, the guidelines did need to be changed to reflect what was increasingly important to New Zealanders - including the country’s reputation.
“Sometimes it's not whether it's clearly in the black or white, and sometimes with matters in the grey, just to protect your reputation you just don't go there.”
Gillespie said the emphasis on transparency was important, as were the guidelines covering both human rights issues and the contravention of international humanitarian law.
He supported changes being made now rather than waiting for legislation, given New Zealand’s engagement with outside partners would grow in the coming years as defence policy changed, but said new law did need to be put in place.
Law change 'longer term goal'
Oxfam Aotearoa advocacy and communications director Dr Jo Spratt said the organisation was pleased to see progress being made in the wake of the independent review, including a move towards an “explicit transparency approach”.
“It is vital the Government continues on this trajectory towards improving Aotearoa New Zealand’s ability to uphold international human rights standards and prevent human rights abuses,” Spratt said.
The ministry has said the recommendation for a standalone law governing export controls is among “longer term goals”, due to the time required to advance legislation and the constraints of the legislative programme.
“We will consider legislative reform, including the possibility for stand-alone legislation covering export controls, following the implementation of those recommendations able to be advanced without legislation.”
In addition to the policy proposals, it has already created two new positions in its export controls team and recruited experienced staff to “manage the workload and mitigate the risk of knowledge residing in one key specialist”.
