PRACTICE AND PROCEDURE - appeals - leave to appeal from decision of tribunal - discretion to grant leave - principles to be applied in exercising discretion - relevant considerations

PRACTICE AND PROCEDURE - appeals - appeal from tribunal on a question of law - framing of question of law - whether proposed appeal truly raises a pure question of law

STATUTORY INTERPRETATION - interpretation of section in Discrimination Act 1991 conferring discretion to grant exemption from principal provisions of Act - effect of purposive injunction in Legislation Act 2001 - effect of interpretative provisions of Human Rights Act 2004 - whether interpretation inconsistent with unambiguous meaning of section mandated or available

Discrimination Act 1991, ss 4, 7, 8 10, 13, 23, 69, 109

Legislation Act 2001, ss 138, 139

Human Rights Act 2004, ss 8, 28, 30, 39

Administrative Appeals Tribunal Act 1989 (repealed), s 46

Human Rights Commission Act 2005

Charter of Human Rights and Responsibilities Act 2006 (Victoria), s 32(1)

Anti-Discrimination Act 1992 (Northern Territory)

Court Procedures Act 2004

Administrative Appeals Tribunal Act 1975 (Commonwealth), s 44

Re Boeing Australia Holdings Pty Limited [2007] VCAT 532

Ghaidan v Godin-Mendoza [2004] UKHL 30; (2004) 2 AC 557

Kingsley's Chicken Pty Limited v Queensland Investment Corporation & Canberra Centre Investments Pty Limited [2006] ACTCA 9

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163

Classic Constructions (Aust) Pty Limited v Conservator of Flora and Fauna [2005] ACTSC 103

Niemann v Electronic Industries Limited [1978] VicRp 44; [1978] VR 431

Décor Corporation Pty Limited v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397

ACT Construction Occupations Registrar v Tokich [2006] ACTSC 89; (2006) 154 LGERA 231

Eastman v Commissioner for Housing in the Australian Capital Territory [2008] ACTSC 1

Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232; (2003) 38 AAR 55

Comcare v Etheridge [2006] FCAFC 27; (2006) 149 FCR 522

TNT Skypack International (Aust) Pty Limited v Commissioner of Taxation (Cth) [1988] FCA 119; (1988) 19 ATR 1067

HBF Health Funds Inc v Minister for Health and Ageing [2006] FCAFC 34; (2006) 149 FCR 291

Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515

Minister for Immigration and Ethnic Affairs v Wu Shin Liang [1996] HCA 6; (1996) 185 CLR 259

House v The King [1936] HCA 40; (1936) 55 CLR 499

AND: RAYTHEON AUSTRALIA PTY LIMITED, AEROSPACE TECHNICAL SERVICES PTY LIMITED, AUSTRALIAN MARITIME SURVEILLANCE PTY LIMITED, AERONAUTICAL CONSULTING TRAINING AND ENGINEERING

1. The application for leave to appeal be dismissed.

2. The applicant pay the respondents' costs of the application.

1. This is an application for leave to appeal from a decision of the Administrative Appeals Tribunal. For reasons published on 24 July 2008, the Tribunal, constituted by the then President, Mr MH Peedom, on 12 August 2008 granted to the present respondents an exemption from certain provisions of the Discrimination Act 1991. In doing so, the Tribunal set aside a decision made by Dr Helen Watchirs, the Human Rights and Discrimination Commissioner for the Australian Capital Territory. Although the decision was that of the Commissioner, the present appellant was named as respondent to the application to the Tribunal. It is the Commission itself which is invested with the power to grant or refuse to grant such an exemption.

2. An appeal to this court lies from the Tribunal by leave on a question of law. The factual findings made by the Tribunal are not challenged, and in any event no appeal is available as to findings of fact, or indeed as to conclusions of mixed fact and law.

3. At the commencement of the hearing the chief solicitor for the Australian Capital Territory, Mr Garrison, appeared for the purpose of informing the Court that the Attorney-General had received notice of the application but did not propose to intervene.

3. One of the applicants, Raytheon Australia Pty Limited ("Raytheon"), is a mission systems integrator providing integration and solutions for sea, land, air and office environments, primarily in defence environments. It is an industry leader in the design, manufacture, implementation and maintenance of defence systems. In Australia, Raytheon's primary customer is the Commonwealth of Australia, through the Department of Defence.

4. Raytheon has facilities located across the country and has an engineering and technical workforce of almost 1,300 persons Australia wide. It operates two sites in the ACT: its head office at Brindabella Business Park where approximately 110 individuals are currently employed, and the Canberra Deep Space Communications Complex at Tidbinbilla where more than 120 individuals are currently employed. [The Communications Complex] is operated on behalf of the Commonwealth Scientific and Industrial Research Organisation and functions as part of the NASA Deep Space Network.

5. In connection with its ordinary business activities in Australia, Raytheon has entered into various contracts with the Commonwealth of Australia, as represented by the Department of Defence, and other companies in Australia or the United States of America to provide defence-related goods and services to be used ultimately by the Australian Defence Forces.

6. The US Arms Export Control Act authorises the US Department of State to control the export and import of defence articles and defence services. These controls are implemented through the International Traffic in Arms Regulations which restrict the transfer of certain defence articles, technical data and defence services outside the US and to non-US persons. The Director of Defence Trade Controls is the individual and agency responsible for administering the Regulations on behalf of the Department of State.

7. In order to fulfil their obligations under the contracts, it is necessary for Raytheon to obtain from US companies, including their corporate parent, The Raytheon Company, and from US government agencies, access to . . . controlled material. Access is obtained through authorisation granted by the Director in the form of Technical Assistance Agreements, Manufacturing Licence Agreements and other similar documents.

8. Section 124.8(5) of the Regulations provides that the following statement must be included in all such agreements:

The technical data or defense service exported from the United States in furtherance of this agreement and any defense article which may be produced or manufactured from such technical data or defense service may not be transferred to a person in a third country or to a national of a third country except as specifically authorised in this agreement unless the prior written approval of the Department of State has been obtained.

9. Consequently the applicants [the respondents to the present application] are contractually bound not to transfer controlled material to a "national of a third country".

10. In applying the prohibition on the transfer of controlled material to "nationals of a third country" in the context of agreements between US and non-US companies, [section 124.8(5)] has been further explained by the Director in its Guidelines for Preparing Agreements as prohibiting transfers to both "dual national" and "third country foreign national" employees. The Director has an absolute discretion about whether or not to authorise the transfer of controlled material to a "dual national" or "third country foreign national".

5. The Tribunal referred to unchallenged affidavits of Raytheon executives. Mr PB Haseman, Director of Legal Affairs and Senior Counsel, apparently of the US parent company, deposed that the communications complex at Tidbinbilla was the primary focus for the space communications activities of the US National Aeronautical and Space Administration within Australia and was an integral part of NASA's space exploration programme. NASA relied on the Tidbinbilla facilities to maintain constant observation of spacecraft as the earth rotated. The vast majority of technology and information needed by the 121 persons employed by Raytheon at Tidbinbilla was controlled material. Without that material Raytheon's employees would be unable to keep the Tidbinbilla site operational.

6. Additionally, a number of Raytheon's employees at Brindabella Business Park required access to the controlled material in order to perform their functions.

7. Mr SL Jones, another senior Raytheon US lawyer, deposed that the Raytheon companies, the present respondents, had a relationship with the Royal Australia Air Force and the Australian Army which included mission systems integration, mission requirements planning and logistical and maintenance support. The majority of Raytheon's contracts required direct communication and interaction with US government agencies and companies. If Raytheon failed to comply with the terms of its approval for use of controlled material, its authority could be revoked; it could be debarred from the use or receipt of controlled material; and the US companies which exported the materials to Raytheon under agreement could be prosecuted. The services provided by Raytheon in Australia related to matters central to Australia's defence operations and national security. If the exemption sought was refused Raytheon might be unable to complete its contracts, which could compromise Australia's defence capabilities and impact on the readiness of Australia's defence forces. It would be likely that the work carried out by Raytheon would be "sent offshore" causing a loss of Australian jobs, a less capable industrial base in Australia, substantially increased defence costs, and delays in the completion of significant defence projects.

8. Mr Jones deposed that Raytheon had given detailed consideration to its options other than obtaining the exemption. The only alternative which had been identified was to seek consent from US authorities to amend agreements with Raytheon so as to include approvals for employees in Australia who were dual nationals or third country nationals to be permitted access to controlled material. This was not a viable option, and in any event would require Raytheon, in breach of ACT discrimination legislation, to require employees to provide it with information as to their nationality and national origin, and to execute non-disclosure agreements. Some flexibility might be expected of US authorities but this would not extend to nationals of a number of proscribed countries. The time likely to be taken by any such process would in any event make it impractical.

9. The provisions of the Discrimination Act 1991 of which the present respondents would fall foul in the absence of an exemption are as follows:

(a) to eliminate, so far as possible, discrimination to which this Act applies in the areas of work, education, access to premises, the provision of goods, services, facilities and accommodation and the activities of clubs; and

(b) to eliminate, so far as possible, sexual harassment in those areas; and

(c) to promote recognition and acceptance within the community of the equality of men and women; and

(d) to promote recognition and acceptance within the community of the principle of equality of opportunity for all people.

(1) This Act applies to discrimination on the ground of any of the following attributes:

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(1) For this Act, a person discriminates against another person if -

(a) the person treats or proposes to treat the other person unfavourably because the other person has an attribute referred to in section 7; or

(b) the person imposes or proposes to impose a condition or requirement that has, or is likely to have, the effect of disadvantaging people because they have an attribute referred to in section 7.

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(1) It is unlawful for an employer to discriminate against a person -

(a) in the arrangements made for the purpose of deciding who should be offered employment; or

(b) in deciding who should be offered employment; or

(c) in the terms or conditions on which employment is offered.

(2) It is unlawful for an employer to discriminate against an employee -

(a) in the terms or conditions of employment that the employer affords the employee; or

(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training or to any other benefit associated with employment; or

(d) by subjecting the employee to any other detriment.

_It is unlawful for a principal to discriminate against a contract worker - _

(a) in the terms or conditions on which the principal allows the contract worker to work; or

(b) by not allowing the contract worker to work or continue to work; or

(c) by denying the contract worker access, or limiting the contract worker's access, to any benefit associated with the relevant work; or

(d) by subjecting the contract worker to any other detriment.

It is unlawful for a person to discriminate against another person by requesting or requiring information (whether by way of completing a form or otherwise) in connection with, or for the purpose of performing, an act that is or would be unlawful under any other provision of this part or under part 5, 6 or 7.

_It is unlawful for a person to advertise any matter - _

(a) that indicates an intention to do an act that is unlawful under part 3, part 5 or this part; or

(b) that could reasonably be understood as indicating such an intention.

Sections 10, 13 and 23 are contained in part 3 of the Act. Section 69 is in part 7.

10. The Dictionary to the Act includes the following definition:

(a) colour, descent, ethnic and national origin and nationality . . .

11. The discretion to exempt is contained in section 109:

(1) The [Human Rights Commission] may, on written application, exempt the applicant in writing from the operation of a specified provision of part 3, part 5 or part 7.

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(3) In the exercise of a power under subsection (1) or subsection (2), the matters to which the HRC must have regard include the following matters:

(a) the need to promote an acceptance of, and compliance with, this Act;

(b) the desirability, if relevant, of certain discriminatory actions being permitted for the purpose of redressing the effects of past discrimination.

(b) is subject to the conditions (if any) specified in the notice; and

(c) has effect according to its terms for the period not longer than 3 years specified in the notice.

12. At the relevant time, a decision by the Commission refusing to grant an exemption was reviewable by the Tribunal.

13. To the extent that the present application requires the Court to discern the meaning and effect of section 109 of the Discrimination Act, or of any other relevant provisions of that Act, the Court must have regard to certain provisions of the Legislation Act 2001 and of the Human Rights Act 2004. The relevant provisions of the Legislation Act are:

(a) resolving an ambiguous or obscure provision of the Act; or

(b) confirming or displacing the apparent meaning of the Act; or

(c) finding the meaning of the Act when its apparent meaning leads to a result that is manifestly absurd or is unreasonable; or

(d) finding the meaning of the Act in any other case.

(1) In working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.

(2) This section applies whether or not the Act's purpose is expressly stated in the Act.

Note: The Human Rights Act 2004, s 30 (1) (which is about interpreting legislation to be consistent with human rights) is also relevant to interpreting territory laws.

14. The relevant provisions of the Human Rights Act are:

(1) Everyone has the right to recognition as a person before the law.

(2) Everyone has the right to enjoy his or her human rights without distinction or discrimination of any kind.

(3) Everyone is equal before the law and is entitled to the equal protection of the law without discrimination. In particular, everyone has the right to equal and effective protection against discrimination on any ground.

Discrimination because of race, colour, sex, sexual orientation, language, religion, political or other opinion, national or social origin, property, birth, disability or other status.

(1) Human rights may be subject only to reasonable limits set by Territory laws that can be demonstrably justified in a free and democratic society.

(2) In deciding whether a limit is reasonable, all relevant factors must be considered, including the following:

(b) the importance of the purpose of the limitation;

(d) the relationship between the limitation and its purpose;

(e) any less restrictive means reasonably available to achieve the purpose the limitation seeks to achieve.

So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.

15. Section 30 was amended to its present wording with effect from 18 March 2008, after Dr Watchirs' decision but before that of the Tribunal. Prior to the amendment it read as follows:

(1) In working out the meaning of a Territory law, an interpretation that is consistent with human rights is as far as possible to be preferred.

(2) Subsection (1) is subject to the Legislation Act, section 139.

(a) resolving an ambiguous or obscure provision of the law; or

(b) confirming or displacing the apparent meaning of the law; or

(c) finding the meaning of the law when its apparent meaning leads to a result that is manifestly absurd or is unreasonable; or

(d) finding the meaning of the law in any other case.

16. The Tribunal correctly applied section 30 in its amended form as applicable at the time of the Tribunal's decision.

17. The present application is necessary by reason of section 46 of the Administrative Appeals Tribunal Act 1989, as in force at the date of the Tribunal's decision and the making of the application. That section read as follows:

(1) A party to a proceeding before the tribunal may appeal to the Supreme Court on a question of law from a decision of the tribunal in the proceeding.

(2) The appeal may be brought only with the Supreme Court's leave.

18. The Tribunal has since ceased for practical purposes to exist. The Administrative and Civil Appeals Tribunal has succeeded to its jurisdiction and functions.

19. Dr Watchirs, in a carefully reasoned letter of 17 pages, set out the background to the request, and the material she considered. She revealed that she had obtained what she described as submissions from other stakeholders, being the ACT and Region Chamber of Commerce, CSIRO, the ACT Bar Association, Unions ACT and the Australian Manufacturing Workers Union. It is unclear how these bodies came to be aware of the application. In broad terms, the Chamber of Commerce and CSIRO supported the grant of an exemption, the Bar Association did not oppose it, and the union bodies, seemingly putting principle ahead of the interests of existing employees of Raytheon, opposed it. Dr Watchirs does not appear to have treated any of the external submissions as influential in arriving at her decision. She referred to the relevant provisions of the Discrimination Act, the Legislation Act and the Human Rights Act, to international conventions and to some decided cases. She noted that exemptions had been granted under discrimination legislation elsewhere in Australia but distinguished those decisions on the basis of the wording of the legislation. She expressed the view that in some cases insufficient weight had been given in interstate decisions to the public interest in upholding human rights and preventing race discrimination. She identified five factors which she said ought to be the focus of attention in an application for exemption by reference to section 28 of the Human Rights Act:

(a) the nature of the right to equality and freedom from discrimination;

(b) the importance of the purpose of the exemption;

(c) the nature and extent to which the proposed exemption limits the right to equality and non-discrimination;

(d) whether or not the proposed exemption is necessary for and achieves the indentified purpose (rational connection); and

(e) whether or not there is a reasonable alternative to the proposed exemption that would achieve the purpose.

20. Dr Watchirs concluded that, after taking the five factors into account, an exemption was not warranted, and that it would be contrary to the objects of the Discrimination Act, the Human Rights Act and the Human Rights Commission Act 2005 to grant such an exemption.

21. After summarising the evidence and setting out the applicable legislation, the President made reference to a number of decisions in other Australian jurisdictions exempting the Raytheon companies and other defence contractors from anti-discrimination legislation. He quoted observations by Morris J in Re Boeing Australia Holdings Pty Limited [2007] VCAT 532 as follows:

40 There is no doubt that this application throws up a dilemma. To grant an exemption would be a departure from a human rights standard that is established by Victorian legislation. Such a departure is only sought because important aerospace technology is subject to an American law which places American security ahead of this human rights standard. One might ask: why should not the Americans give way? On the other hand, in circumstances where it is unlikely that the Americans will give way, should we stand on principle and forego valuable jobs and enhanced defence capability? Would this be a case of cutting off our nose, not to spite our face, but to please our face?

41 The submission made by the AMWU urged the tribunal to take a tough line: in effect, to apply pressure on the United States government to back down. This is a tempting submission. One suspects that the ITAR is misconceived; and, in any event, fails to achieve an appropriate balance between human rights and other important considerations, such as arms control and preventing terrorism. But, then, I rather doubt that the United States government will back down from ITAR in the face of a decision of the Victorian Civil and Administrative Tribunal.

42 Sometimes you simply cannot ignore the elephant in the room. Like it or not, the United States is the world power and controls key aerospace technology. For reasons that are probably well intentioned (even if misguided), the United States prohibits the licensing of such technology if so-called secrets are revealed to persons of certain nationality. Companies operating in Australia are left with the choice of acquiescing or not manufacturing certain aerospace products. Although acquiescence involves compromising a human rights standard, the alternative involves the potential sacrifice of jobs, economic benefits, defence capability and higher education advantages.

22. The President noted at paragraph [32] of his reasons that counsel for the Commission had accepted during the hearing that there was an important public policy objective to be furthered by the grant of an exemption, namely that it would advance national security for Australia to have access to the most sophisticated defence equipment reasonably available and it would advance the national commercial interest for that equipment to be built or maintained in Australia. Counsel had also accepted that the conditions of an exemption proposed by the applicants were likely to be the least restrictive option reasonably open and that the proposed exemption would not undercut the exemptions specified in part 4 of the Discrimination Act.

23. Counsel for the Commission had, however, submitted that a different regime of statutory interpretation applied in the Australian Capital Territory from that in the other Australian jurisdictions, and that this prevented the Tribunal from granting the exemption which was sought. This was primarily because of section 39 of the Human Rights Act, which requires a Territory law to be interpreted in a way that is compatible with human rights so far as it is possible to do so consistently with the purpose of the law. The President quoted from the explanatory statement accompanying the Bill which resulted in the amendment to section 30 in March 2008: section 39 "clarifies the interaction between the interpretive rule and the purposive rule such that as far as it is possible a human rights consistent interpretation is to be taken to all provisions in Territory laws. This means that unless the law is intended to operate in a way that is inconsistent with the right in question, the interpretation that is most consistent with human rights must prevail. This is consistent with the Victorian approach contained in subsection 32(1) of the Charter of Human Rights and Responsibilities Act 2006. It also draws on jurisprudence from the United Kingdom such as the case of Ghaidan v Godin-Mendoza [2004] UKHL 30; (2004) 2 AC 557 cited recently by the ACT Supreme Court in Kingsley's Chicken Pty Limited v Queensland Investment Corporation & Canberra Centre Investments Pty Limited [2006] ACTCA 9".

24. The President explained that the decision of the House of Lords in Ghaidan dealt with the application of section 3 of the United Kingdom Human Rights Act 1998 which included a provision in the following term:

3(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the [European Convention on Human Rights].

25. The Convention included a provision that rights were "without discrimination". The House of Lords held that legislation expressed to give protection to a person living with another person "as his wife or husband" should be interpreted to include people of the same sex living as partners. The President quoted extensively from the speeches of Lord Nicholls, Lord Steyn and Lord Rodger in Ghaidan. Lord Nicholls said:

29. . . . it is now generally accepted that the application of section 3 does not depend on the presence of ambiguity in the legislation being interpreted. Even if, construed according to the ordinary principles of interpretation, the meaning of the legislation admits of no doubt, section 3 may nonetheless require the legislation to be given a different meaning . . .

30. . . . it follows that the interpretative obligation decreed by section 3 is of an unusual and far-reaching character. Section 3 may require a court to depart from the unambiguous meaning the legislation would otherwise bear . . . Section 3 may require the court to depart . . . from the intention of the Parliament which enacted the legislation.

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33. Parliament, however, cannot have intended that in the discharge of this extended interpretive function the courts should adopt a meaning inconsistent with a fundamental feature of legislation. That would be to cross the constitutional boundary section 3 seeks to demarcate and preserve. Parliament had retained the right to enact legislation in terms which are not Convention-compliant. The meaning imported by application of section 3 must be compatible with the underlying thrust of the legislation being construed. Words implied must, in the phrase of my noble and learned friend, Lord Rodger of Earlsferry, "go with the grain of the legislation".

26. The President noted a submission from counsel for the Commission that the discretion conferred by section 109 of the Discrimination Act should be interpreted in a manner which required the discretion to be exercised only in a way compliant with the rights conferred by the Human Rights Act.

27. The President noted that whilst it had been stated in the explanatory statement of March 2008 that the amendment drew on jurisprudence from the United Kingdom such as Ghaidan, the Tribunal could not ignore the fact that the legislature had chosen not to adopt the same wording as the equivalent United Kingdom Act. It was significant, in the President's view, that the United Kingdom Act did not include a qualification that legislation was to be interpreted consistently with its purpose. The absence of the purposive qualification in the United Kingdom section had, in the President's view, more readily enabled the far-reaching consequence that the intention of Parliament could be departed from so as to achieve a human rights-compliant outcome.

28. The President formed the view that the existence of the discretion conferred by section 109 of the Discrimination Act meant that it was not the purpose of the Act to exclude all discrimination. He took the view that section 109 conferred a broadly-based discretion to exempt persons from the application of certain provisions of the Act. It was accordingly not possible to interpret the Discrimination Act in such a way as to remove any discretion from the decision-maker to grant an exemption in the circumstances of the present case.

29. On the facts of the case, the President, after weighing the interests of persons whose human rights might be adversely affected if the exemption were granted against the defence and security of the nation, arrived at the view that the correct or preferable decision was to exercise the discretion in favour of the grant of the exemption, on conditions which were set out in the Tribunal's order of 12 August 2008, the exemption to remain in force for three years.

30. The proposed notice of appeal asserts that the decision of the Tribunal involved the following questions of law:

1. Whether, on the proper construction of section 109 of the Discrimination Act 1991 and sections 30 and 28 of the Human Rights Act 2004 the Tribunal, in exercising its discretion to grant or refuse to grant an exemption from the operation of the relevant provisions, is bound to take into account, alternatively is bound to exercise the discretion on the basis, that:

(a) the purpose of the Discrimination Act is eliminating discrimination, including discrimination on the grounds of nationality or national origin in the area of work, so far as possible;

(b) there is a real or reasonable possibility, alternatively a likelihood, of the relevant provisions being able to be complied with by the applicant without the exemption being granted; and

(c) current and prospective employees and contract workers of the respondent are entitled to equality before the law and to equal and effective protection against discrimination, subject only to reasonable limits on that right that can be demonstrably justified in a free and democratic society.

2. Whether the Tribunal erred in law by failing to take into account, alternatively failing to exercise its discretion on the basis of, the matters referred to in paragraphs 1(a), (b) and (c) above.

3. Whether the Tribunal erred in failing, properly, to apply sections 30 and 28 of the Human Rights Act in interpreting section 109 of the Discrimination Act by:

(a) failing to identify correctly the relevant purpose of the Discrimination Act, being the elimination of discrimination to which the Act applies, including discrimination on the grounds of nationality or national origin in the area of work, so far as possible;

(b) failing to determine that it is consistent with the purpose of the Discrimination Act to interpret section 109 of that Act in a way which gave effect to the right of current and prospective employees and contract workers of the respondents to enjoy their human rights without discrimination, to equality before the law and to equal and effective protection against discrimination on any ground, as provided in section 8 of the Human Rights Act.

4. Whether, notwithstanding sections 4 and 109(3) of the Discrimination Act and sections 30 and 28 of the Human Rights Act, as properly construed, it is a purpose of the Discrimination Act to confer a broadly-based discretion to exempt persons from the application of its provisions.

5. Whether the Tribunal erred in law in finding that it was a purpose of the Discrimination Act to confer a broadly-based discretion to exempt persons from the application of its provisions.

6. Whether in exercising the discretion conferred by section 109 of the Discrimination Act, the Tribunal failed to apply the criteria required by law to the facts before it.

7. If the Tribunal erred in respect of any of the matters described above, whether it constructively failed to exercise its jurisdiction.

31. The grounds of appeal set out in the notice may be summarised as follows: that the Tribunal erred in law by failing to take into account, or alternatively failing to exercise its discretion on the basis of, the matters set out as the questions of law said to have been involved in the decision of the Tribunal. A further ground of appeal is said to be that the Tribunal erred in law in not imposing certain specified conditions on the grant of the exemption.

32. The orders proposed to be sought on appeal, if leave is granted, are:

1. The decisions of the Australian Capital Territory Administrative Appeals Tribunal dated 24 July 2008 and 12 August 2008 be set aside.

2. Alternatively, the decision of the . . . Tribunal dated 12 August 2008 be amended by deleting the condition in paragraph b(i) and substituting therefor the following condition:

"(i) take all reasonable steps to gain a specific approval under the US Security Regulations for an employee, prospective employee or employee of a contractor who satisfies the requirements for employment other than the requirements in respect of nationality or national origin pursuant to the US Security Regulations".

3. Such further or other orders (including orders as to costs) as the Court deems appropriate.

33. Counsel for the applicant submitted that the Court, in deciding whether or not to grant leave to appeal from a decision of the Tribunal, should take account of the following considerations:

(a) Is there doubt as to the correctness of the decision in relation to questions of law? If the application is bound to fail or has no prospects of success, leave would not be granted, but it is not the function of the judicial officer determining the application for leave to decide the issue in question, or the likely outcome of the appeal.

(b) Leave should be granted if there would be injustice if the decision was allowed to stand.

(c) Leave may more readily be granted where the proposed appeal involves issues of public importance.

34. Counsel for the applicant further submitted that in construing the legislative provision conferring the discretion to grant leave to appeal, an interpretation consistent with human rights should be preferred as far as possible.

35. Counsel for the applicant submitted that the questions of law which arise from the decision of the Tribunal relate essentially to:

(a) the way in which the Tribunal construed the discretion conferred by section 109 of the Discrimination Act, and the matters to be taken into account; and

(b) the way in which the Tribunal applied the interpretive provisions of the Human Rights Act as to the construction of section 109 of the Discrimination Act, and in particular the way in which the Tribunal identified the purpose of that Act.

36. The primary error made by the Tribunal, counsel submitted, emerged from paragraph [80] of the President's reasons, where the President found that section 109 conferred a broadly-based discretion to exempt persons from the application of the Act. Counsel submitted that the discretion, as properly construed, was considerably circumscribed both by section 109(3) of the Discrimination Act, and by considerations arising from the scope, purpose and subject matter of the Act. Having found that the relevant purpose of the Discrimination Act included the conferring of a broadly-based discretion to exempt persons from its provisions, the Tribunal also erred in the way in which it applied section 30 of the Human Rights Act to the construction of section 109. The Tribunal's task was to identify any limitations imposed in the apparently broad discretion under section 109. The Tribunal was obliged to consider not only any limitations which were expressly stated, but also limitations arising by implication from the subject matter, scope and purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39 per Mason J.

37. Subsection 109(3) specifies two matters to which the Human Rights Commission must have regard in exercising a power upon an application for exemption. The specified matters are stated to be included in the matters to which the Commission must have regard. It is apparent that they are not intended to be the only matters to which the Commission must have regard. Counsel for the Commission submits that in addition, the Commission must have regard to:

(a) the express objects of eliminating discrimination to which the Act applies, relevantly including discrimination on the grounds of nationality and of national origin in the area of work, so far as possible: see section 4(a) of the Discrimination Act;

(b) whether there is a real or reasonable possibility of the applicant being able to comply with the provisions of the Act without the exemption being granted: see section 4(a), section 109(3) and the scheme of the Act as a whole; and

(c) the right of current and prospective employees, under section 8 of the Human Rights Act, to equality before the law and equal and effective protection against discrimination, subject only to reasonable limits which can demonstrably be justified in a free and democratic society: see section 109 as interpreted in accordance with sections 28 and 30.

38. Counsel for the Commission submits that the Tribunal erred in finding that the discretion conferred by section 109 is a broadly-based discretion to exempt persons from the application of provisions of the Act. Counsel submits that there were three errors in the process by which the Tribunal arrived at that conclusion:

(a) the Tribunal did not clearly identify the nature of the statutory construction question before it, which required identification of the factors arising from the subject matter, scope and purpose of the Discrimination Act requiring the decision-maker to take into account matters circumscribing the discretion, for example by preventing discrimination so far as possible;

(b) the Tribunal erred in its identification of the purpose of the Discrimination Act; and

(c) the Tribunal erred in the application of sections 28 and 30 of the Human Rights Act because it had wrongly identified the purpose of the Discrimination Act.

39. Counsel for the Commission submitted that the Tribunal appeared to have focused not on the purpose, subject matter and scope of the Discrimination Act as a whole, but upon the purpose, subject matter and scope of section 109 alone in its exercise of determining the purpose of the Act. The Tribunal accordingly failed to give proper effect to the express object in section 4(a) of eliminating discrimination as far as possible.

40. Counsel for the Commission submitted that the Tribunal erred in not referring to a decision of the Anti-Discrimination Commissioner of the Northern Territory in relation to an application by Raytheon. The application was apparently withdrawn before the Commissioner's decision was published, but the Commissioner decided to publish the decision anyway, in furtherance of his statutory functions, including the promotion and understanding and acceptance of the Anti-Discrimination Act 1992 (Northern Territory). The Commissioner expressed the view that on the basis of the material before him it would be inappropriate to approve an exemption which "in effect authorised race-based distinction in employment".

41. Counsel for the Commission submitted that the Tribunal appeared to have erred in identifying the purpose of the Discrimination Act. This was an error relating to the nature of the discretion conferred by section 109 and was hence an error of law raising a question of law for the purposes of section 46 of the Administrative Appeals Tribunal Act.

42. More generally, counsel for the Commission submitted that the Tribunal did not take into account the considerations it was required to take into account in exercising the discretion under section 109 and hence erred in the exercise of the discretion. This was either a failure to apply the criteria required by law to the facts before the Tribunal, or a constructive failure to exercise jurisdiction: see Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 178.

43. In relation to whether or not leave should be granted, counsel for the Commission submitted that the application raised questions of law relating to the interpretation and application of the Discrimination Act and the Human Rights Act, both pieces of Territory legislation of significant public importance. There was no judicial authority on the interpretation of section 109 of the Discrimination Act. Judicial consideration of the operation of sections 28 and 30 of the Human Rights Act, as applied to the Discrimination Act and to Territory laws generally would assist the Commission in discharging its statutory function and provide guidance to the public generally in the interpretation of Territory laws. Additionally, the factual subject matter of the present case was of public importance. There was no uniform national response to applications for exemption from the various anti-discrimination legislative provisions in the States and Territories of Australia. There would hence be a public interest in the determination of the issues sought to be ventilated on appeal.

44. Counsel for Raytheon provided the Court with submissions, firstly as to the principles the Court should apply in determining whether or not leave should be granted, and secondly and principally, on what is meant by a question of law, and the identification of the question or questions of law on which the applicant wishes to appeal.

45. Counsel drew attention to my reasons for decision in Classic Constructions (Aust) Pty Limited v Conservator of Flora and Fauna [2005] ACTSC 103, an application for leave to appeal from the Administrative Appeals Tribunal. The requirement for leave had been introduced in cognate legislation at the time of the passing of the Court Procedures Act 2004, the stated purpose being "to streamline and standardise the appeal process to the Supreme Court". In that decision I stated that the requirement for leave was recognised as a warning that interlocutory appeals were not to be brought as a matter of routine. I referred to the requirement in many jurisdictions for leave to appeal from an interlocutory order made by a single judge, and in that regard mentioned the principles set out by the Full Court of the Supreme Court of Victoria in Niemann v Electronic Industries Limited [1978] VicRp 44; [1978] VR 431: to obtain leave to appeal from an interlocutory order, an appellant must show a doubt about the correctness of the primary judge's decision, and that an injustice would be done by allowing the decision to stand. A court would more readily give leave to appeal against an interlocutory decision which had effectively terminated the rights of the intending appellant. Where the first-instance decision had related merely to a question of practice or procedure, leave would be reserved for cases with special features warranting appellate review. I said, echoing previous authority, that it was inappropriate to seek to express some statement of principle to be applied generally to applications for leave to appeal from the Tribunal, and that it was preferable to deal with each application on its own facts and merits, and to allow the development of general principles on a case-by-case basis.

46. Counsel for the respondents submitted that, as the Full Federal Court had said in the leading decision relating to applications for leave to appeal within the Federal Court, Décor Corporation Pty Limited v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 at 398-399, general guidance might still be obtained from the major considerations derived from Niemann, namely:

(a) Whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered; and

(b) Whether substantial injustice would result if leave were refused, supposing the decision to be wrong.

These comments have been cited with approval on innumerable occasions in a range of contexts by a variety of courts, and may be taken to offer general guidance in relation to the present application.

47. Where a proposed appeal raises a question of law but the court is satisfied that the Tribunal made no error of law, the appropriate course is to refuse leave: see for example ACT Construction Occupations Registrar v Tokich [2006] ACTSC 89; (2006) 154 LGERA 231; Eastman v Commissioner for Housing in the Australian Capital Territory [2008] ACTSC 1.

48. An appeal from the Tribunal lies only on a question of law. It must be accepted that the intention of the legislature was that a decision of the Tribunal on the facts was to be final and not subject to appeal, except perhaps in cases of Wednesbury unreasonableness. A decision of the Tribunal is not intended to be open to appeal generally, as is the case, for example, with a judgment of this Court. It must be accepted that there are sound reasons of public policy for this limitation, notwithstanding that some who fail in the Tribunal will have a sense of grievance about it.

49. The same limitation applies to appeals from the Commonwealth Administrative Appeals Tribunal to the Federal Court of Australia. In Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232; (2003) 38 AAR 55, Branson and Stone JJ said at [18] " . . . a question of law to be raised on an appeal from the Tribunal should be stated with precision as a pure question of law". In Comcare v Etheridge [2006] FCAFC 27; (2006) 149 FCR 522, Branson J, referring to section 44(1) of the Administrative Appeals Tribunal Act 1975 (Commonwealth), quoted with approval the observation of Gummow J in TNT Skypack International (Aust) Pty Limited v Commissioner of Taxation (Cth) [1988] FCA 119; (1988) 19 ATR 1067 at 1069-1070 that an appeal "on a question of law" is narrower than an appeal that merely involves a question of law. Where an appeal lies "on a question of law" the subject matter of the appeal is the question or questions of law as stated in the notice of appeal. Branson J went on to state explicitly that a mixed question of fact and law is not a question of law within the meaning of the section.

50. In HBF Health Funds Inc v Minister for Health and Ageing [2006] FCAFC 34; (2006) 149 FCR 291, the Federal Court (Spender, Branson and Siopis JJ) said:

As pointed out in Birdseye . . . and Etheridge . . . the subject matter of an appeal pursuant to section 44(1) of the AAT Act is the question or questions of law specified in the notice of appeal . . . As Birdseye and Etheridge also make plain, the grounds required to be specified in the notice of appeal are not grounds of appeal; they are the grounds upon which the appellant will argue that the answers for which it contends to the questions of law entitle it to the relief which it seeks. It is not possible . . . to extend the subject matter of the appeal beyond the specified questions of law by itemising, under the heading "Grounds", a series of alleged errors (some being errors of law, some being errors of fact and some being errors of mixed law and fact) in the reasons for decision of the Tribunal.

51. In Birdseye at [14] - [16] their Honours also referred approvingly to the decision of Ryan J in Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 to the effect that merely to assert that the Tribunal erred in law in making a particular finding was not to state a question a law. As Ryan J put it at 527:

. . . it simply begs the question of law to commence it with the words "Whether the Tribunal erred in law". If the question, properly analysed, is not a question of law no amount of formulary like "erred in law" or "was open as a matter of law" can make it into a question of law.

52. The questions must be stated in such a away as to cause the Court to answer questions of law rather than impermissibly seeking to draw the Court into simply reviewing the decision of the Tribunal. Further, the error of law must be material. The questions should be stated as pure questions of law, but the grounds of appeal should link the potential answers to the questions to the decision of the Tribunal by asserting that the Tribunal made a particular error of law which would lead to the Court making the orders sought on the hearing of the appeal. Courts "must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision": Minister for Immigration and Ethnic Affairs v Wu Shin Liang [1996] HCA 6; (1996) 185 CLR 259 at 272.

Does the draft notice of appeal set out pure questions of law?

53. Counsel for the respondents submits that question 1(a) in the draft notice of appeal suggests that there were mandatory considerations which the Tribunal was required by the Discrimination Act and the Human Rights Act to take into account in exercising its discretion. Counsel submits that it is difficult to discern what meaning the purported question has. If it is meant to suggest that the Tribunal was required to take into account the objects of the Discrimination Act set out in section 4, the question cannot lead to establishing any material error of law by the Tribunal, for the Tribunal plainly took into account the objects of the Act, setting them out and discussing them at some length. Counsel for the respondents submits that the question is not stated as a pure question of law, and that if it raises any legal error, such legal issue cannot be material to the reasoning of the Tribunal.

54. As to question 1(b), counsel submits that the question raises no issue of law but is rather directed to the particular facts of the exemption application made by the Raytheon companies, and hence amounts to a barely disguised attempt to engage in merits review.

55. Question 1(c), it is submitted, appears to be an attempt to suggest that the Tribunal was required to take into account the provisions of section 8 of the Human Rights Act in exercising its discretion. Again, the Tribunal quoted the right and clearly took account if it. 1(b), it is submitted, is not a question of law.

56. Question 2, it is submitted, appears in essence a restatement of question 1.

57. Counsel submitted that question 3 was essentially an invitation to the Court to engage in a review of the merits of the decision. To the extent that question 3 could be interpreted as stating a pure question of law, it could not lead to a different result from the decision made by the Tribunal, which clearly took sections 28 and 30 of the Human Rights Act into account.

58. Counsel submitted that question 4 did not sufficiently identify any issue of law. The question did not identify any matter which the Tribunal took into account which it was not permitted to take into account, or any matter which it was required to take into account but did not. The main matters taken into account by the Tribunal in favour of granting the exemption were issues affecting national defence and security. The Commission through its counsel at the hearing before the Tribunal expressly accepted that these were considerations which could legitimately be taken into account.

59. Questions 5, 6 and 7, counsel submitted, did not identify any questions of law which the Court could be expected to answer and certainly no questions of law which, if answered favourably to the applicant, would require the decision of the Tribunal to be set aside.

60. The grounds of appeal generally repeated what were said to be the questions of law to be answered by this Court. They added a further ground, being that the Tribunal erred in law in not imposing an express condition that the respondents take all reasonable steps to gain a specific approval under relevant United States regulations. Counsel for the respondents submits that it is not permissible to raise this additional matter when it is not raised by the questions of law. In any event, the question of whether and what conditions should be imposed in grating an exemption involves a judgment on the facts going to the merits and is not capable of itself raising a question or error of law.

61. The section under which Dr Watchirs made her decision, and under which the President of the Tribunal substituted his own decision, is a section which in its terms confers a discretion on the decision-maker. Counsel for the applicant submitted that the President was in error in describing the discretion as broadly-based but must be taken to have accepted that the section was intended by the legislature to have some scope for operation notwithstanding the constructional strictures imposed by subsection 109(3), the Legislation Act and the Human Rights Act. I do not understand the submissions of counsel for the applicant to go so far as to argue that as a matter of law the Tribunal was bound to refuse the application for exemption, or that the Commissioner was bound to do so. Both were exercising a discretion, although counsel submits that the scope for its exercise was considerably circumscribed by legislation.

62. Counsel for both the applicant and the respondents referred in their written submissions to the decision of the High Court in Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24, and in particular to the judgment of Mason J commencing at page 32, with which Gibbs CJ and Dawson J concurred. Mason J at page 39 and following explained the responsibilities of a decision-maker in exercising a discretion, and the role of a court in undertaking judicial review of a discretionary decision. His Honour differentiated between the considerations a decision-maker is bound to take into account, considerations the decision-maker is permitted to take into account, and considerations the decision-maker is required not to take into account. The general principle is that an appellate court will interfere with the exercise of a discretion only where there has been some identified error or manifest injustice in the exercise of the discretion. In the present case, the Court would have no jurisdiction to interfere with the decision of the Tribunal simply because the Court disagreed that the decision made by the Tribunal was the correct or preferable decision.

63. As Mason J said in Peko-Wallsend, the question whether the decision sought should have been refused on discretionary grounds must be answered by reference to the principles of law which regulate the circumstances in which a court may review the exercise of a discretion: at page 47. As His Honour said, the principles were authoritatively enunciated in House v The King [1936] HCA 40; (1936) 55 CLR 499, in terms which have been frequently applied by the High Court. As His Honour said, the rules governing review of a discretionary decision are grounded in the view that it would not be right to overturn such a decision solely on the basis of the court's mere preference for a different result, when the question is one on which reasonable minds may come to different conclusions, the decision falls within a reasonable range, and no error on the part of the person exercising the discretion can be shown. Where the argument of the applicant can be put no higher than an assertion that a different result should have been reached, the appeal should be dismissed.

64. In the present case, it is clear that what have been framed on behalf of the applicant as questions of law do not fall within that category. They are not questions which, if answered favourably to the applicant, must lead to the setting aside of the decision of the Tribunal and thus the reinstatement of the decision of the Commissioner. The majority judges in Birdseye (Branson and Stone JJ) engaged at [21] in the exercise of reframing the questions asked in the notice of appeal in such a way as to provide a basis for an appeal. In the present case, such a reframing would, it seems to me, necessarily involve the question of law being framed as follows:

Whether on the proper construction of section 109 of the Discrimination Act 1991 the Tribunal, having regard to its findings of fact, was bound to refuse the application for exemption from the operation of sections 10, 13 and 69 of the Act.

65. In these circumstances the applicant, who I am reminded was effectively the original decision-maker in the matter, would face a difficult task in persuading the Court to interfere with the Tribunal's exercise of the discretion.

66. Subsection 109(3) of the Discrimination Act is somewhat oddly worded. The subsection spells out two matters to which the Commission must have regard in the exercise of the power to exempt an applicant from the operation of a specified provision of the Discrimination Act. The subsection states that the matters to which the Commission must have regard include those two specified matters. Its seems to follow from the way in which the subsection is grammatically expressed that there are other matters to which the Commission must (not merely may) have regard, but these are not stated. It may be that the legislature intended to encompass simply the other matters to which any decision-maker must have regard in the exercise of any discretion, or perhaps more specifically in the exercise of any discretion to exempt someone from the operation of statutory provisions. The spelling out of other matters to which the Commission must have regard in exercising its power under section 109 may have to await further elucidation by a tribunal or court in the future.

67. The applicant faces a further difficulty on the present application arising from the fact that an appeal from the Tribunal to this Court lies only on a question of law. As Gummow J observed in TNT Skypack (supra), the question of law is itself the subject matter of the appeal. Branson and Stone JJ explained in Birdseye at page 325 that the question or questions of law must be stated in the notice of appeal as questions of law. They rejected the purported questions of law which had been set out in the notice of appeal in Birdseye at paragraph [7]. They said that the questions of law would have to be reframed, and suggested a way in which this could be done at paragraph [21]. The observations of their Honours in that decision are pertinent to the present application. The purported questions of law as framed suffer from the same defects as those before the Federal Court in Birdseye. It seems to me that they would need to be reframed as pure questions of law, if that could be done, and that the grounds of appeal would need to be reframed in such a way if the questions of law were answered favourably to the applicant, it would follow that the President of the Tribunal had committed an error of law in arriving at the decision he did. It is difficult to imagine a situation where a Tribunal in conducting merits review of the decision of a first-instance decision-maker in the exercise of a discretion could be said to have arrived at a decision which could not stand. If there is a discretion to be exercised at all, it must be capable of being exercised so as to arrive at more than one outcome. As I have said earlier, counsel for the applicant does not go so far as to submit that the effect of the legislation was to bind either the first-instance decision-maker or the Tribunal to arrive at only one outcome.

68. It is apparent on the face of the reasons of the Tribunal that the President directed his mind to the matters specified in subsection 109(3) of the Discrimination Act, and that in interpreting that subsection the President had regard to the provisions of the Legislation Act and the Human Rights Act.

69. It appears to me that on a proper analysis of the draft notice of appeal, the applicant is in practical terms asking the Court to review the decision of the Tribunal on its merits and to substitute its own decision, as the correct and preferable decision, for the decision of the Tribunal. That is impermissible and beyond the jurisdiction of this Court.

70. In addition to those reasons, it seems to me that even if a question of law could be identified which would be capable of leading to a decision that the order of the Tribunal should be set aside, this is not a matter where leave to reconsider the decision would be justified. No individual or group of individuals has complained about the grant of the exemption. There is no evidence that any individual or group of individuals has suffered or is likely to suffer any loss by reason of the grant of the exemption. To the extent that it is possible to arrive at a view about what might have happened if the Tribunal had not substituted its decision for that of the Commissioner, the most likely outcome seems to be that the Raytheon companies would have been unable to continue to perform their contractual obligations to the Commonwealth, possibly resulting in loss of employment by existing employees of the Raytheon companies. It cannot be said that the decision of the Commissioner would have resulted in the employment by the Raytheon companies of persons who fell foul of the American regulations. There is thus no basis for concluding that any such persons have suffered or are likely to suffer impairment of earning capacity or other loss by reason of the grant of the exemption. To that extent there is no obvious injustice to any person which might be found to flow from the grant of the exemption.

71. It was submitted by counsel for the applicant that a further reason for the grant of leave was that issues of public importance were involved. This submission does not withstand scrutiny. It was submitted that there is no judicial authority on the interpretation of section 109 of the Discrimination Act, and that that section is not in precisely the same terms as similar legislation in other Australian jurisdictions. It is not apparent to me that there is any ambiguity or lack of clarity in section 109 which calls for judicial interpretation. A decision of this Court would in any event be of no national significance. Further, the Commission and the public have the benefit of a considered decision of the President of the Tribunal which should be of assistance in the determination of any further applications for exemption under section 109 which might arise in the future.

72. For those reasons it does not appear to me that the decision of the Tribunal is attended by sufficient doubt to warrant leave, nor does it give rise to a question of law capable of forming the basis of an appeal to this Court. The application for leave will be refused with costs.

I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Solicitors for the respondent: Allens Arthur Robinson

for the Australian Capital Territory: Mr P Garrison

for the Australian Capital Territory: ACT Government Solicitor