Whether the export may undermine confidence in Aotearoa New Zealand’s commitment to being a responsible exporter of strategic and military end-use goods.
Guidance on Criterion 6
An assessment will take into account the risk of harm, if any, from an export. This includes risks of harm that fall short of the threshold applicable under other Criteria. Criteria 2 and 3, for example, cover international obligations and commitments to avoid a range of harms, some of which have a very high threshold for non-compliance. For some exports, however, even though the potential harm (or the degree of certainty about whether a harm may eventuate) does not meet the relevant thresholds under Criteria 2 and 3, assessors may determine that a decision to approve the export would nevertheless undermine confidence in Aotearoa New Zealand’s commitment to being a responsible exporter. The determination would be discretionary but would require more than a purely theoretical link between the potential harm and the export.
Under Criterion 6 the question of whether there is reputational risk by association – in other words, reputational risk resulting not from the export itself but from other behaviours of the end user – will also be considered. This is particularly relevant to questions of human rights abuses and repression (behaviours relating to peace, stability and security would be considered under Criterion 5). Under Criterion 6, a determination may be made to decline an export which, for example, in the Secretary of Foreign Affairs and Trade’s view, would be to a disreputable end-user even where the specific export itself may not be problematic. In conducting this assessment, consideration will be given to any parent organisation or other associated organisations of the end-user and, where relevant, to the state itself. The assessment would include consideration of whether the concerning behaviour consists of isolated incidents or is systemic; whether procedures are in place or being put in place to prevent occurrences and to undertake investigation and enforcement of alleged abuses or repression; and whether the behaviour appears to be ‘endorsed’ by the state (for example, through legislation or through a demonstrated lack of will to address it).
If the degree of reputational risk by association is determined to be low, it is unlikely to lead to a permit denial in the absence of other factors of concern. Where reputational risk is assessed as medium, there may be occasions where it is offset by positive factors under other criteria such as Criterion 5. As an illustration, an export to a maritime entity associated with an armed force that presents reputational risk and is also part of a repressive regime, may be offset by the contribution of the export to the ability of that entity to counter transnational organised crime including piracy, drugs and people smuggling. In circumstances where these positive factors outweigh the reputational risk, the export permit would be likely to be approved.