Australia’s defence export program has recently come under scrutiny for its lack of transparency – particularly in relation to whether approved export permits are providing material support to Israel’s war against Hamas.
The UN special rapporteur on the Palestinian Territories has criticised the government’s lack of transparency, as have academics and politicians.
They contend the government should be publicly divulging the details of the military export permits it approves. Currently, this is not done.
To compel the government to release information about recent exports, a group of human rights organisations recently filed an application in the Federal Court. The aim: to gain access to permits exporting defence equipment to Israel since its military operation began in early October.
What is known about Australia’s defence exports?
Only limited details about the Department of Defence’s approved exports are routinely published.
Specific details about which manufacturers receive the permits and the nature of the exported goods, however, are not provided publicly, even when they are requested through the Freedom of Information Act. The government often cites confidentiality or the protection of business information as reasons for rejecting the requests.
Reporting provided to international bodies is also limited. For instance, Australia typically only provides the general class of equipment being exported by country for publication on the United Nations Register of Conventional Arms. This information only relates to broad types of conventional weapons or components for weapons of mass destruction.
Some information does get released during Senate Estimates hearings. A hearing in October, for instance, revealed the government had approved 350 defence export permits to Israel in the last five years, including 50 this year. However, it did not detail what those exports were.
What are Australia’s international obligations?
Australia is obliged to prevent the export of goods that can be used either for unlawful conduct during armed conflicts or human rights violations.
Some of these obligations come from specific treaties, such as the Arms Trade Treaty, which set out the exact requirements for exporting some types of defence items. Others come from Australia’s responsibility as a sovereign state not to contribute to another country breaching international law.
These obligations cover various things, including:
what specific items Australia can export, and
to whom it can sell military goods or “dual-use” items (meaning they have a civilian function but could also be used in military operations).
For instance, there are laws that limit exports to entities that are the subject of international sanctions, or if an entity has committed (or is suspected of committing) human rights abuses or war crimes when using the exported items.
In addition, there are separate lists of prohibited items (such as those that could be used in weapons of mass destruction), and particular types of weapons (such as chemical or biological) which are banned under other treaties.
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Australia also has obligations to ensure it respects the laws of armed conflict by not actively contributing to another country breaching the laws of war under the Geneva Conventions and its protocols.
This means if another country is involved in a conflict and is observed to be systematically breaching the laws of war, Australia cannot lawfully provide material support to them.
How does the government decide what to export?
Australia has a specific list of items called the Defence Strategic Goods List. Permits are required to allow for the export, import and distribution of goods on this list. There are also controls over the specific skills and knowledge related to making and using such items.
The list is broad – it includes everything from conventional weapons and components (like tanks or weapon sights) to dual-use objects (such as certain types of lasers or chemicals that could be weaponised).
To export an item on the list, approval is required by the minister of defence, or their delegate. Among the things they have to consider are whether the goods would risk being used against Australia’s international legal obligations or to “commit or facilitate serious abuses of human rights”.
The law does not outline how much weight is put on each criteria or what kind of information is necessary to support this decision-making process.
As it stands, the main method to test this process is through Freedom of Information Act requests, which have been shown to have limited success, or through parliamentary processes, such as Senate Estimates.
The other option is to discover the information through a court case, as the application filed this month is attempting to do.
How do other countries do it?
In Europe, arms controls are generally subject to greater public scrutiny.
The United States also publishes more information about its exports. Canada has recently implemented a process of publicly reporting the reasons that export permits are declined.
In the United Kingdom, a group filed a similar court case to the Australian one, seeking information on weapons exports to Saudi Arabia. This case ultimately failed in June. However, it compelled the UK government to clarify its decision-making criteria regarding alleged human rights abuses and to publish more information about its weapons export decisions.
What could change in Australia?
The legislation that controls the permit system is currently undergoing a required five-year review. However, the government has yet to implement the recommendations it agreed to following the 2018 review.
There has also been little public information about the progress of the updates agreed to from the last review, or what has changed so far.
Another bill was recently introduced to make some changes to these laws. However, this focused on tightening existing controls and easing restrictions with two key allies – the US and UK – to facilitate the AUKUS agreement. The lack of public transparency about export controls remains.
In light of the current geopolitical situation, Australia could demonstrate its commitment to its international legal obligations by making some additional adjustments. For example, it could allow outside parties to make submissions on weapons export permits or routinely publish more details of its approved permits.
Transparency in export controls is considered best practice by many other countries, and Australia can easily do more to align itself to this.
Lauren Sanders works as a legal consultant with IWR Pty Ltd, advising companies in the defence industry on international humanitarian law and weapons law issues. This consultancy does not include advice on export control laws. Any comments made here are in her personal capacity and do not represent the views of the Australian government or the Australian Defence Force. The views expressed reflect publicly available information unless otherwise stated.
This article was originally published on The Conversation. Read the original article.
