AUSTRALIA Law and Practice Contributed by: Dennis Miralis, Jack Dennis and Phillip Salakas, Nyman Gibson Miralis
use goods and technologies. The ABF is the pri - mary agency responsible for enforcing this regime; however, other government agencies are involved, including the Defence Export Controls (DEC) within the Department of Defence. • The Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 (Cth) – this controls any goods, technologies or services that could be used in a weapons of mass destruction programme. The DEC administers this regime. • Defence Trade Controls Act 2012 (Cth) – this con - trols the transfer of defence and strategic goods, technologies and services. The DEC also adminis- ters this regime. Key to this regime is the Defence and Strategic Goods List 2024, which sets out the military and dual-use goods, software and tech- nologies subject to export control regulations in Australia. • Export Control Act 2020 (Cth) – this establishes a framework that regulates the export of all goods (including agricultural products and food) through the Export Control Rules 2021. This regime is gen - erally administered by the Department of Agricul- ture, Fisheries and Forestry. The import or export of a good or service must comply with any applicable regime, which may require seeking authorisation from the relevant authority under each regime. By way of example, the export of a dual-use good to a country subject to a sanctions regime may require an export permit from the DEC as well as a sanctions permit from the ASO. There is notably more enforcement action regarding the abovementioned regimes than regarding the sanc- tions regimes. 5.2 Goods Please refer to 5.1 Services . 6. Civil Litigation and Arbitration 6.1 Force Majeure Australian courts have recognised that Australian- imposed sanctions can trigger a force majeure clause, allowing the contracting party to terminate a contract. This position was made clear in Alumina and Bauxite
Company Ltd v Queensland Alumina Ltd (2024) FCA 43, whereby it was found that a party was entitled to cease supplying, shipping and delivering certain goods to other entities – in which the designated oli- garchs held indirect shareholding interests – on the basis that such activities would breach Australia’s autonomous sanctions. This question turned on the construction of the specific sanction regime and each of the contract’s force majeure clauses. This position was confirmed by the Full Federal Court of Australia in dismissing Alumina and Bauxite Company Ltd’s appeal in Alumina and Bauxite Company Ltd v Queensland Alumina Ltd [2024] FCAFC 142. Based on this, a party would have to show only on the balance of probabilities that they would breach Australian sanctions (a breach that would ordinarily require proving beyond a reasonable doubt). Even where there is no suitable force majeure clause, there may be other avenues available to parties when sanctions affect contracted obligations, such as the common-law defence of supervening illegality. This defence is enlivened where there is a change in the law – after the formation of a contract – that renders the future performance of a contract unlawful. Supervening illegality is a defence to the non-performance of the contract. In some circumstances, supervening illegality may have the same terminating effect as frustration. The impact of non-Australian sanctions on the per- formance of contractual obligations remains largely untested. 6.2 Enforcement Australian courts are yet to consider key questions concerning the enforcement of Australian judgments – or the recognition and enforcement of foreign judg- ments – where sanctions are live issues. These questions will turn on the precise sanction regimes at play, the role of the sanctioned person or entity (eg, plaintiff, defendant, judgment creditor or judgment debtor) and the circumstances of the mat- ter, including the timing of the proceedings. There may be influence drawn from UK decisions such as PJSC National Bank Trust & Anor v Boris Mints & Ors (2023) EWHC 118 (Comm) and the Ministry of Defence and
19 CHAMBERS.COM
Powered by FlippingBook