21 October 1996

Mr Peter Gutmann
24 Durness Place
Orewa
Auckland

Dear Mr Gutmann,

Thank you for your letter of 14 September [1].

In your letter you asked for an indication of the regulatory basis of our export controls. Under the Customs Export Prohibition Order 1996, promulgated under the Customs and Excise Act 1996, the export of goods identified in lists held by the Ministry of Foreign Affairs and Trade cannot take place without the permission of the Secretary of Foreign Affairs and Trade. Prior to 1 October 1996, when these regulations entered into force, the controls were administered by Customs on the advice of the Ministry of Foreign Affairs and Trade. The relevant regulations were then the Export Prohibition Regulations 1953, which took effect under the Customs Act 1966. Under that system, lists of controlled goods were approved by the Minister of Customs.

These controls allow us to implement our obligations under the Wassenaar Agreement (which you referred to in your letter) and a number of other multilateral export control regimes. The initial elements agreed to by members of the Wassenaar Arrangement state clearly that controls implemented under it remain a matter of national policy[2].

I assume the application you refer to in your letter is the application to export an encryption library received by this Ministry on 15 May of this year. That application raised a number of difficult and complex issues. The company concerned was given permission to export part of the library, and was told the remainder of the application would remain under consideration. We made it clear that this could take some time, as the application dealt with a relatively new area in terms of our export controls, and was in a rapidly changing and advancing field. We have not yet reached a final decision on that application, and are currently discussing it and other issues it raises with relevant government departments [3].

I hope this helps your understanding of the issue.

Yours sincerely

Caroline Forsyth
for Secretary of Foreign Affairs and Trade

[1] It took them 1 1/4 months to reply to this letter.

[2] My emphasis. This is a very important point: Controls implemented are a matter of national policy, so that each nation determines for itself which sorts of controls it implements. This point was emphasised again at a later date by the Minister of Foreign Affairs himself.

[3] This means the GCSB, but noone ever refers to them by name.