Several sanctions regimes prohibit the export or import of ‘arms or related matériel’ and the provision of related services.
This Factsheet provides a guide to assist you to assess whether a good is arms or related matériel (or ‘arms or related lethal matériel’ or ‘weapons or military equipment’, as it is referred to in some regimes).
Identifying whether a good is arms or related matériel is not always straightforward. Dual-use goods, that have both military utility and non-military or civilian utility, are captured. Each good needs to be considered individually.
What does the law say?
There is no exhaustive definition in Australian sanctions laws of arms or related matériel. This means that not all goods that are arms or related matériel are listed in the definition.
Relevant regulations define arms or related matériel similarly as including weapons, ammunition, military vehicles or equipment, paramilitary equipment, and the spare parts and accessories for any of those things (see regulation 3 of the Autonomous Sanctions Regulations 2011 and the various regulations made under the Charter of the United Nations Act 1945 to implement UN Security Council sanctions regimes, for example regulation 5 of the Charter of the United Nations (Sanctions-Iran) Regulations 2016).
What does Australian Sanctions Office (ASO) consider?
To assess whether a good is arms or related matériel, ASO considers: first, the nature of the good; second, the proposed or actual end use of the good; and, third, in cases of doubt, the end user of the good.
More specifically, ASO asks the following three questions:
- Does the good have intrinsic military utility? If the answer is 'yes', the good is arms or related matériel. The answer is generally 'yes' for, among others, any good mentioned in the Defence and Strategic Goods List. If the answer is 'no' or 'maybe', go to the next question.
- Does the proposed or actual end use of the good have intrinsic military utility? If the answer is 'yes', the good is arms or related matériel. If the answer is 'no', the good is not arms or related matériel. If the answer is 'maybe', go to the next question.
- Does the end user of the good indicate that the proposed or actual end use of the good would have intrinsic military utility? If the answer is 'yes', the good is arms or related matériel. If the answer is 'no', the good is not arms or related matériel. If the answer is 'maybe', ASO will assess whether the good is 'arms or related matériel' depending on all the circumstances.
What should I consider?
You need to make your own assessment of whether a good is arms or related matériel.
A good starting point is to check whether the good is listed on the Defence and Strategic Goods List (DSGL). The DSGL is a list of goods, software or technology subject to Defence Export Controls. ASO generally considers any good listed on the DSGL is arms or related materiel.
Your assessment should focus on the nature of the good itself, including its design, structure and function, and whether the good has intrinsic military utility. Goods that are specifically designed or modified for military use are likely to have an intrinsic military utility. It is not necessary that the goods have a sole or primary military utility, as dual-use goods (that is, with both a military and non-military or civilian utility) may be arms or related matériel if they have an intrinsic military utility.
In making your assessment, you may also need to consider the end use and end user of the good. In some cases, the end use and/or the end user may indicate that the good is arms or related matériel. Dealings in high risk regions (for example, a country involved in armed conflict) will require a high degree of precaution and due diligence in identifying the likely end use and end user.
Case Study 1: Unencrypted radios with no frequency hopping
An Australian business wants to export high frequency unencrypted radios to a UN agency operating in a sanctioned country. The radios will be used by UN personnel to facilitate communications between the UN agency’s three regional offices. The UN agency has a non-military function. Unencrypted high frequency radios with no frequency hopping are not on the DSGL. Analysis: The radios do not have intrinsic military utility as they are not on the DSGL and are designed for unsecure communications. The end use of the radios (to aid communication between various UN regional offices) is not military in character. Conclusion: The goods are not arms or related matériel.
Case Study 2: Protective Clothing
An Australian business wants to export protective clothing to a humanitarian NGO operating in a sanctioned country. The clothing will be used by NGO staff to provide protection while delivering aid to refugees. The clothing includes durable calico overalls and bulletproof vests. Bulletproof vests are on the DSGL.
Analysis: The overalls do not have intrinsic military utility as they are not designed for military use and are not on the DSGL. The bulletproof vests have intrinsic military utility as they are designed for military use and are on the DSGL. With respect to the overalls, the end use of the goods (to protect NGO personnel from sun, dust and other outdoor elements while providing humanitarian aid to refugees) does not have intrinsic military utility, it has a health utility. The end user (a humanitarian NGO with no military functions) does not indicate that the end use has intrinsic military utility.
Conclusion: The overalls are not arms or related materiel. The bullet proof vests are arms or related matériel.