"Controlled material" means material (including equipment, technology, articles and services) to which the security requirements apply.

"Discriminate", "employee" and "contract worker" each have the meaning given in the EO Act.

"Security requirements" means any of the following -

(a) requirements made by the Australian government, that government's Department of Defence or any other department of that government under the Customs (Prohibited Exports) Regulations 1958 (Cth), the Defence Services Manual, or a term or condition of a licence or approval granted under those Regulations or under the Customs Act 1901 (Cth), including requirements for personal security clearances;

(b) requirements of laws of the United States of America, including but not limited to, the International Trafficking in Arms Regulations and the Export Administration Regulations including requirements of any permit, licence or approval granted, or agreement made, under those laws;

(c) contractual requirements applying to the Applicant and relating to any of the requirements mentioned in paragraph (a) or (b).

"Specified conduct" means to discriminate on the ground of the nationality against any member of the Applicant's Victorian workforce or anyone who wishes to join that workforce, in relation to defence-related projects undertaken or to be undertaken by the Applicant, and only to the extent required to enable the Applicant to comply with the security requirements, and includes but is not limited to the following conduct to the extent that it is required to enable the Applicant to comply with the security requirements -

(a) requiring members or potential members of the Applicant's Victorian workforce to provide details of their nationality and country of origin to enable the Applicant to determine whether they are permitted under the security requirements to work on certain defence-related projects or to have access to controlled material or controlled information;

(b) identifying (by means of a badge, maintenance of a list or otherwise) those in its Victorian workforce permitted by virtue of their nationality to work on certain defence-related projects or have access to related controlled material or controlled information so as to distinguish them from those not so permitted;

(c) preventing the release of controlled material or controlled information to members of that workforce on the basis of their nationality;

(d) requiring members of that workforce to execute formal security agreements based on nationality;

(e) restricting access to controlled material and controlled information connected with certain defence-related projects to particular members of that workforce based on their nationality;

(f) restricting access to areas of its facilities connected with certain defence-related projects to particular members of its Victorian workforce based on their nationality;

(g) rejecting applications to join its Victorian workforce in positions relating to certain defence-related projects based on the job applicant's nationality, and taking into account a person's nationality in determining who should be offered employment or contract work requiring access to controlled material or controlled information;

(h) transferring members of its Victorian workforce from certain defence-related projects on the basis that, due to their nationality, the Applicant may not permit them to work on those projects, whether that transfer takes into account existing or changed nationality;

(i) disclosing information about the nationality of members of its Victorian workforce to -

(iii) the Australian Department of Defence;

(iv) any other organisation for which or on whose behalf or at whose request the Applicant undertakes work in respect of which the Applicant has (directly or indirectly) an obligation not to transfer defence-related information to non-Australian citizens.

"workforce" of the Applicant means the Applicant's employees and contract workers.

UPON READING the material filed in support of this application and for the Reasons for Decision published today, the Tribunal is satisfied that it is appropriate to grant an exemption from sections 16, 18, 21, 107 and 182 of the EO Act to enable the Applicant to engage in the exempt conduct.

The Tribunal hereby grants an exemption to the Applicant from the operation of sections 16, 18, 21, 107 and 182 of the EO Act to enable the Applicant to engage in the specified conduct.

This exemption is subject to the conditions in the Schedule. The exemption is to remain in force from 20 March 2015 to 2 May 2017.

1. This exemption applies only to conduct by the Applicant where it has taken all steps reasonably available (including steps that might be taken in negotiating or performing any contract) to avoid the necessity to engage in the specified conduct.
2. Where the specified conduct involves moving a member of the Applicant's Victorian workforce from one project, area or facility to another, the Applicant must, through a duly authorised officer, explain to the person why he or she is being transferred and must otherwise take all reasonable steps to avoid or limit harm or loss to that person which might arise from the transfer.
3. Where the Applicant has a system of badges or security passes to identify those in its Victorian workforce permitted by virtue of their nationality to work on certain defence-related projects or to access related controlled material or controlled information, or levels of access to that material or information, the pass or badge may show a code that indicates the holder's nationality, but not in such a way that a person unfamiliar with the code would be able to identify that nationality.
4. All information relating to security passes or badges, security clearance levels, or access to controlled material or controlled information, must be restricted to the Applicant's Manager of Security and Human Resources Manager and their properly appointed nominees on a 'need to know' basis.
5. The Applicant's employment policies must continue to refer to the terms and conditions of this exemption, and to make it clear that the purpose of requiring information regarding nationality is solely to enable compliance with the security requirements.
6. The Applicant must provide a copy of this exemption to -
   • (a) existing contractors who supply it with contract workers, as soon as is reasonably possible after this exemption commences; and
   • (b) any new contractors who supply it with contract workers, as soon as is reasonably possible after the relevant contract is entered into.
7. The Applicant must report in writing to the Commission and the Tribunal six months after the commencement of this exemption, and every six months thereafter while the exemption is in force detailing in respect of the period to which the report relates, and in respect of the matters covered by this exemption -
   • (a) the steps taken by the Applicant to comply with the EO Act and the terms and conditions of this exemption, including training and education given to its Victorian workforce, compliance audits, and any complaints made under the EO Act;
   • (b) the number of applications to join its Victorian workforce rejected under the exemption and whether any (and if so, how many) were subsequently appointed to other roles;
   • (c) the number of members of its Victorian workforce moved to other projects, areas or facilities under the exemption, and any steps taken to minimise harm or loss to those people arising from the transfers;
   • (d) the number of Victorian workforce vacancies advertised or offered under the exemption.
8. The Tribunal, in determining whether to grant a further exemption, may (as well as other factors) take into account any breach of these conditions and anything in any report under condition 7.

1. BAE Systems Australia Defence Pty Ltd (BAE Defence) has applied for an exemption from provisions in the Equal Opportunity Act 2010 (Vic) (EO Act) which prohibit discrimination on the basis of race (defined to include nationality or national origin).[1] Sections 16, 18 and 21 of the EO Act prohibit discrimination against job applicants, employees and contract workers. Section 107 of the EO Act prohibits requesting discriminatory information, such as someone's race. Section 182 of the EO Act makes it an offence to publish or display or authorise the publication or display of discriminatory advertising.
2. The full details of the conduct which BAE Defence wishes to engage in is set out in the exemption attached to the order above.
3. BAE Systems is a wholly owned subsidiary of BAE Systems Australia Limited (BAE Systems). The ultimate holding company of BAE Defence and BAE Systems is BAE Systems plc, a company incorporated in England and Wales which is listed on the London Stock Exchange.
4. On 28 March 2012, I made an order granting an exemption to BAE Systems.[2] That exemption, which will expire on 2 May 2017, was the second exemption granted by this Tribunal to BAE Systems, the first having been granted under the then applicable Equal Opportunity Act 1995 (Vic).
5. As I understand it, until around late 2013, BAE Defence understood that the March 2012 exemption which had been granted to the parent company, BAE Systems, applied to its operations also. As BAE Defence is a separate legal entity, that is not the case and so this exemption application was made.
6. I have decided to grant a further exemption on the same terms as those which apply to that granted to BAE Systems, subject to a small amendment to one of the conditions. At BAE Defence's request, the expiry date for the exemption will be the same as for the exemption granted to BAE Systems, namely 2 May 2017. These are the reasons for that decision.

1. Pending the hearing and determination of this application, on 17 October 2014, I granted an interim exemption on the same terms as that granted to BAE Systems. I made a further interim exemption to allow adequate time for a hearing into the matter to be held. The further interim exemption will expire on 19 March 2015.
2. The Victorian Equal Opportunity and Human Rights Commission (Commission) was given notice of the exemption application. While it did not seek leave to intervene, it did request that, using the power contained in section 98(2A) of the Victorian Civil and Administrative Tribunal Act 1998, the Tribunal admit into evidence the submissions it filed in the earlier BAE Systems proceeding. I have done so.
3. Directions were made requiring the applicant to give notice of the exemption application to each of its Victorian employees and also to each union which represents its Victorian employees. The notice advised that the employees or unions could make submissions to the Tribunal about the exemption application. No submissions were received from any current employees or from any union. Having regard to an affidavit sworn by Peter Quinlivian on 18 December 2014, I am satisfied that BAE Defence complied with those directions.
4. A submission was received from Mr Gardi Hewapanna Meringnage, who refers to himself as Mr Gardi, and he also requested an opportunity to be heard. Mr Gardi attended the hearing held on 12 February 2015. Mr Gardi was born in Sri Lanka and came to Australia in 2006. He was previously employed by BAE Defence before suffering a workplace injury. His employment ended and the circumstances which led to that event have been the subject of dispute in this Tribunal. To the extent that Mr Gardi's written and oral submissions touched on the specific circumstances of his employment, I have put them to one side. I will refer further to the submissions later.
5. BAE Defence relied on affidavits sworn by Mr Quinlivian, Senior Legal Counsel, and written submissions. At the hearing, further submissions were made regarding the matters raised by Mr Gardi.

The EO Act and the Tribunal's decision making process

1. I have referred above to the prohibitions on discrimination contained in the EO Act raised by this application. Section 13 says that the EO Act does not prohibit discrimination if an exemption applies. The consequence of section 13 is that, the conduct may be discriminatory under the EO Act, but there is no breach of law when that conduct is engaged in, as it is not prohibited discrimination. In other words, that conduct is taken out of the Act.
2. The provisions dealing with exemptions are found in sections 89 and 90 of the EO Act. Section 89 says that the Tribunal may, by notice published in the Government Gazette, grant an exemption from any provisions of the EO Act in relation to a person or classes of persons or an activity or class of activities or any other provision in any other circumstances specified by the Tribunal. An exemption may be granted for any period of not more than five years. An exemption may be renewed from time to time for a period of not more than five years. Exemptions may be granted or renewed subject to any conditions the Tribunal considers fit.
3. Section 90 of the EO Act sets out mandatory considerations for the Tribunal when exercising the power under section 89. Section 90 says:

In deciding whether to grant, renew or revoke an exemption, the Tribunal must consider -

(a) whether the proposed exemption is unnecessary because -

(i) an exception or exemption in this Act already applies to the conduct sought to be exempted; or

(ii) the conduct sought to be exempted would not amount to prohibited discrimination; and

(b) whether the proposed exemption is a reasonable limitation on the right to equality set out in the Charter of Human Rights and Responsibilities; and

1. As a consequence of section 32(1) of the Charter of Human Rights and Responsibilities Act 2006 (Charter), the Tribunal must interpret section 89, so far as it is possible to do so, compatibly with human rights. The Tribunal is required to undertake the usual interpretative process to identify the meaning of section 89 and also to consider whether the purpose of section 89 can be interpreted compatibly with human rights.[3] Section 32(1) seeks to ensure that Charter rights are kept in mind when a statute is construed but does not require the language of a section to be strained to effect consistency with the Charter.[4]
2. The plain words of section 89 indicate that the purpose of the section is to empower the Tribunal to exercise a broad discretion to grant, renew or revoke exemptions from provisions of the EO Act. The Tribunal may apply conditions to the exemption and determine its term. Section 90 requires that the Tribunal take into account the listed matters when exercising the discretion.
3. I am satisfied that there is no exception under the EO Act which applies and so, in the absence of an exemption, the conduct BAE Defence seeks to engage in would amount to prohibited discrimination. The proposed exemption is not unnecessary under section 90(a) of the EO Act.
4. Section 90(b) directs the Tribunal to one of the human rights created by the Charter. As section 90(c) is open ended, the Tribunal may also take into account any other human rights which arise in the circumstances. In this way, the purpose of section 89 can be interpreted compatibly with human rights.
5. The onus of establishing that it is appropriate to grant an exemption falls on the applicant.
6. When exercising the discretion created by section 89 of the EO Act, the Tribunal must consider the matters listed in section 90. Further, under section 38(1) of the Charter, as a public authority, when making that decision the Tribunal must not fail to give proper consideration to a relevant human right.[5] The right to equality is considered as a mandatory consideration under section 90(b). In the context of this matter, the right to privacy contained in section 13 of the Charter may also be relevant.
7. When considering whether to grant an exemption it is also appropriate that the Tribunal have regard to the objectives of the EO Act and the broad circumstances surrounding the application.
8. In BAE Systems Australia Limited, Raytheon Australia Pty Ltd and Thales Australia Limited and ADI Munitions Pty Ltd,[6] I discussed the Tribunal's approach to exemption applications of this kind and the Charter. Those decisions also discussed the other matters which are to be considered under section 90(c) of the EO Act. I do not intend to repeat the broad analysis but rather adopt it here.

1. In my 2012 reasons for decision in BAE System's exemption application,[7] I discussed the nature of the United States laws which have led to the application, the submissions made by the Commission in that case and submissions made by the Australian Manufacturing Workers Union. I also discussed changes in the relevant US laws and developments under Australian Commonwealth law. Given a number of these matters have not changed since my 2012 decision, I have adopted the same approach, as summarised below.
2. In order for BAE Defence to undertake its business of developing and manufacturing defence systems, it makes use of defence related technical data, goods and services, some of which are produced in the US and which are required to be kept secret. The US has passed laws which limit, by reference to nationality and place of birth, who can have access to that secret material. There are also secrecy requirements relating to Australian government work, which in part concern the nationality of the applicant's workers.
3. To meet these requirements BAE Defence is required to seek information regarding the nationality and place of birth of some of its prospective employees, current employees and contractors (workforce) and uses that information to determine whether to offer work to some and to determine for others whether they can undertake certain work. On its face, seeking and using information concerning a person's nationality or place of birth in this way is a breach of the prohibition in the EO Act on discrimination on the basis of race in respect of employment.
4. Australian law restricts access to material[8] under the Australian Security Intelligence Organisation Act 1979 (Cth) (ASIO Act). Under the ASIO Act, individuals must obtain personal security clearances before they may access and use Australian classified material. Personal security clearances may only be obtained by Australian citizens or non-Australian citizens who have a security clearance issued by the US, the United Kingdom, Canada or New Zealand or a waiver of nationality from the Australian Defence Force.
5. The US Arms Control Export Act 22 USC s2778 (2004) and the International Traffic in Arms Regulations 22 CFR s 120 (2003) (together, ITAR) impose export controls on the transfer of defence related technical data, goods or services (controlled material). Those controls include a requirement that the nationality of persons who will have access to controlled material be identified and disclosed and there is restricted access to controlled material by persons of particular nationalities. Under these US laws, nationality refers not only to citizenship but also to place of birth.
6. The US has designated that certain countries pose a security risk to it such that steps must be taken to ensure that neither those nations nor their nationals can access controlled material. Those countries, referred to as proscribed countries, are named in the ITAR and change from time to time.
7. As was discussed in the 2012 BAE Systems reasons for decision[9] and more recently in Thales Australia Limited and ADI Munitions Pty Ltd,[10] the US laws were amended in 2011 to reduce their impact. The 2011 amendment allows workforce members who are dual nationals or nationals of prohibited countries to access controlled material. Access is achieved either through the individual holding an appropriate Australian Government security clearance or via a screening process. In respect of the latter, the central question is whether the individual has 'substantive contacts' with persons from prohibited countries. Such contacts are presumed to raise a risk that controlled material may be diverted to those prohibited countries.
8. The Australian-United States Treaty on Defense Trade (which came into effect on 16 May 2013) and the Commonwealth Defence Trade Controls Act 2012 (which commenced on 6 June 2013) do not overcome the need for companies such as BAE Defence and BAE Systems to make enquiries about nationality and place of birth.
9. The US has concluded an agreement with the Australian Department of Defence which allows access to controlled material by persons who hold Australian Department of Defence Security Clearances. That path to access is only open to employees and contractors who do not hold nationality of a country proscribed by the ITAR.
10. In the BAE Systems proceeding, the Commission made submissions on the proper approach to applications of this kind under the EO Act and the Charter. It also made submissions on the question of whether the 2011 ITAR amendments were a less restrictive means reasonably available to the applicant to meet the ITAR obligations in a manner which intrudes less on human rights. It was argued that, as those amendments allow for greater access to unclassified controlled material, the scope of the required exemption might be reduced. As discussed in the reasons for decision, I concluded that the 2011 amendments were not sufficient to conclude that an exemption was no longer necessary under section 90 of the EO Act. That was because, the 2011 amendments still required the relevant company to seek nationality or national origin information. While the 2011 amendments might well mean that potential workforce members may more readily be employed in roles which require access to controlled materials by undertaking the screening process, that screening process of itself may be regarded as more intrusive than seeking only nationality and national origin information. I was informed from the bar table on instructions that in the period March 2012 to December 2013, 13 people were screened and only one was unsuccessful.
11. As discussed in Thales, it is apparent that, although there have been changes to the US export laws and efforts are being made to ameliorate their effects on employment practices in Australia (and so in Victoria), they are yet to obviate the need for an exemption. That is because, in respect of some workforce members and some controlled materials, there will continue to be a need to make decisions partly or entirely based on workforce members' nationality or national origin. Neither the 2011 amendment nor the other measures discussed above cover the field.
12. In the BAE Systems decision and in Thales, I discussed the very significant consequences of non-compliance with the US export laws. In addition to the imposition of large financial penalties, breaches are likely to lead to the relevant entity being prohibited from accessing controlled material for a specified period. For BAE Defence (and potentially BAE Systems), that would mean that work which requires access to controlled material, could not continue in Victoria and potentially also across Australia. That would impact on the jobs of a number of persons and also on the defence requirements of the Australian Government.
13. The sole reason BAE Defence seeks the exemption is to ensure that, like its parent company, it does not breach the EO Act by taking steps to ensure compliance with the relevant Australian and US laws.

Relationship between BAE Defence and BAE Systems

1. As noted above, BAE Defence is a wholly owned subsidiary of BAE Systems. The companies divide their operations into three business units which include a maritime division. The companies are supported by shared service functions such as finance, human resources, commercial and procurement, engineering, project management, legal and business development. BAE Systems' policies concerning recruitment, compliance with the EO Act and reporting about use of the exemptions have been applied equally to BAE Systems.[11]
2. At paragraphs 11 to 16 of my decision in BAE Systems, I described the nature of BAE Systems' business and in particular its Victorian based facilities and contracts. BAE Defence has clarified that the facility located at Williamstown is operated by it rather than by BAE Systems.[12]
3. As at 4 October 2014, BAE Defence had 1131 employees and 124 contractors based at its Williamstown facility. Some of the work carried out at Williamstown concerns defence material which is the subject of the US laws discussed above. In Victoria, BAE Defence is currently working on four contracts which have individual values ranging from $15 million to $3 billion. In his affidavit, Mr Quinlivian explains that the work of BAE Defence changes over time depending on the needs of its principal customer, the Australian Government on behalf of the Australian Defence Force. Mr Quinlivian anticipates that BAE Defence will, in the future, enter into contracts which require access to and use of controlled material. I was informed at the hearing that, although at present there is some uncertainty about future ship building contracts, current contracts in relation to Destroyers cover the period to 2016 and there is a continuing contract in place for ongoing maintenance on other ships.
4. The existing BAE Systems exemption requires compliance with a range of conditions. Those conditions have been designed to minimise recourse to the exemption, to wherever possible remove adverse consequences for employees and, where those consequences cannot be avoided, minimise them. BAE Systems have provided reports to the Commission and the Tribunal about compliance. Since the 2012 exemption was granted, in Victoria:
   • Two complaints have been received, including that of Mr Gardi;
   • Twelve applications for employment have been rejected relying on the exemption granted to BAE Systems and in each case there was no alternative role available to the individual;
   • 29 workforce members have been moved to other projects, areas or facilities relying on the exemption granted to BAE Systems and in each case there was no harm or loss was caused to the workforce members as a consequence; and
   • 760 positions were advertised relying on the exemption granted to BAE Systems.
5. I note here that the Commission made no submissions about the adequacy or otherwise of the conditions and nor were submissions made by the Commission or the unions representing workers about complaints or concerns since 2012.
6. I accept the evidence summarised above.

1. At the 12 February 2015 hearing, oral submissions were made by Mr Gardi and BAE Defence's counsel.
2. On the question of whether an exemption ought to be granted, Mr Gardi's submissions included the following:
   • Victoria is one of the most multinational and multicultural states in Australia. Reference was made to census data about the numbers of people in Victoria who were born in the countries which are proscribed under the ITAR. On his figures, that number totals more than 280,000 people. Mr Gardi submits that, if the exemption is granted those persons born in proscribed countries (some of whom may wish to be employed by BAE Defence) will be discriminated against;
   • There is a question about why BAE Defence has now sought this exemption and whether it had engaged in prohibited discrimination in the period that it believed that the exemption granted to BAE Systems applied to it. Reference was made to certain job advertisements for roles at the Williamstown facility;
   • Workers who are employed by companies who undertake work for BAE Defence are also being discriminated against because, if access is required to controlled material, they must obtain the relevant approvals and so those workers are also discriminated against because of BAE Defence's requirements;
   • The granting of an exemption will be in breach of the laws of the Commonwealth and Victoria (such as the Fair Work Act 2009 (Cth), Multicultural Victoria Act 2011 (Vic), Occupational Health and Safety Act 2004 (Vic) and Commonwealth discrimination legislation) in addition to equal opportunity laws of various Australian states; and
   • The relevant work can be undertaken by BAE Defence relying on Australian personal security clearances.
3. Mr Gardi also referred me to the decision of the Northern Territory Anti- Discrimination Commission in Raytheon Australia Pty Ltd.[13] In that decision, the NT Commission decided that the evidence before it was not sufficient to establish that the economic and defence predictions relied on were proven. Similarly, the NT Commission was not satisfied about the adequacy of the evidence presented in respect of the connection between economic downturn and national security and how they relate to the NT. The NT Commission determined it was not in the public interest for an exemption to be granted where it found that the loss of relevant work would not be as significant as the applicant contended.
4. In response, BAE Defence submitted that:
   • As discussed above, BAE Defence became aware in late 2013 that the existing BAE Systems exemption did not apply to the workforce at the Williamstown facility and so made this application. The BAE Systems exemption application related to the work undertaken at that facility. Mr Gardi's late 2013 application to this Tribunal was the only complaint received;
   • From time to time, BAE Defence makes use of labour hire firms to provide workers. Those workers are employed by the labour hire firms rather than BAE Defence. While it is correct that BAE Defence requires that those workers can be approved to have access to controlled material, neither it nor the relevant companies seek to rely on this exemption application. The arrangements between those companies and their workers is a matter for them;
   • Possible breaches of Commonwealth and other state's equal opportunity laws is not a relevant matter as the Tribunal's decision concerns only BAE Defence's conduct in Victoria and provides protection only in respect of the EO Act; and
   • Australian personal security clearances are not an alternative to seeking race based information as they are only available to Australian citizens and some other countries in limited circumstances. Further, it is not practicable or possible for all BAE Defence employees, potential employees or long term contractors to apply for those clearances, where the processing of such applications is managed through Commonwealth agencies rather than through BAE Defence.
5. While it could not be expected that all of the 280,000 plus individuals identified by Mr Gardi would wish to work for BAE Defence, he is correct to draw attention to the fact that, by granting an exemption, the Tribunal is effectively allowing BAE Defence to potentially limit the employment opportunities for some Victorians.
6. I accept the submissions made above by BAE Defence. In particular, I accept the circumstances which led to this application. While accepting that BAE Defence may enter into arrangements with labour hire companies, I make it clear that this application does not extend to those arrangements or any action taken by those companies. Any rights under the EO Act arising from those relationships continue.[14]

1. Having granted an exemption to BAE Systems in part in respect of work, employees and contractors which were the subject of that exemption but which are in fact within BAE Defence's control, it would be inconsistent to refuse this application which seeks an exemption on the same terms, subject to the same conditions and for the same period of time.
2. Where there has been no material change in the legal landscape which would make an exemption unnecessary, given the relationship between BAE Defence and BAE Systems and the 2012 exemption, I consider it appropriate under the EO Act and taking into account the Charter, to grant the exemption sought on the same terms and for the same period of time for the same reasons as given in respect of the BAE Systems' exemption application.
3. The same conditions will apply which, importantly, include a requirement that the exemption may only be relied on when BAE Defence has first taken all steps reasonably available to avoid that action. Further, there is a condition that, where a workforce member is to be moved from one project, area or facility to another, BAE Defence must explain to the person why he or she is being transferred and must also take all reasonable steps to avoid or limit harm or loss to that person which might arise from the transfer. The other conditions have been designed to minimise use of the exemption and to reduce its impact on the workforce.
4. As is the case each time an exemption application of this kind is made, the Tribunal is aware of the EO Act's objective to eliminate discrimination to the greatest extent possible and to further promote and protect the right to equality set out in the Charter. Mr Gardi's submissions were a reminder that, in granting an exemption, there is a real risk that Victorians will miss out on the opportunity to find work with BAE Defence. Those matters weigh against granting an exemption. Weighing in favour of granting the exemption is the internal consistency mentioned above and also consistency in treatment of entities such as BAE Defence in Victoria and in other jurisdictions. The interests of current and future individual employees and contractors and the financial benefits brought to Victoria are highly relevant as is the Australian government's defence needs.
5. As long ago as 2008, then Deputy President McKenzie referred to the race based approach to risk assessment as being a 'blunt and imperfect instrument' and suggested that assessment on a non-stereotyped basis or the use of secrecy training and education would provide a better approach.[15] In an earlier decision,[16] I commented that the use of nationality and national origin information to make determinations about access to controlled material is unsatisfactory from a human rights and equal opportunity point of view. However, the current circumstances are such that race based assessment is still one of the tests which the Australian and US governments have determined to be appropriate in this area. While the 2011 amendments and other measures remain imperfect, it is to be hoped that more movement towards individual assessment without regard to protected attributes will be the way of the future.

[1] Section 3 definition - see sections 6, 7, 8 and 9 which set out the attributes protected by the EO Act and the definitions of discrimination, direct and indirect discrimination.

[2] BAE Systems Australia Limited [2012] VCAT 349.

[3] Momcilovic v The Queen [2011] HCA 34.

[4] Momcilovic per Crennan and Keifel JJ at paragraph [565]; see also Slaveski v Smith & Legal Aid [2012] VSCA 25 at paragraphs 20 and 24.

[5] The Tribunal is a public authority for the purposes of making decisions regarding exemptions under the EO Act - see Lifestyle Communities Pty Ltd (No 3) [2009] VCAT 1869.

[6] Raytheon Australia Pty Ltd [2014] VCAT 1370 and Thales Australia Limited and ADI Munitions Pty Ltd [2014] VCAT 1441, paragraphs 24 to 26.

[7] BAE Systems Australia Limited [2012] VCAT 349.

[8] The term 'material' is understood to include data, information, technology, services and equipment.

[9] Paragraphs 27 to 34 and 95 to 95 to 109.

[10] [2014] VCAT 1441, paragraphs 24 to 26.

[11] Affidavit of Peter Quinlivian, sworn 15 October 2014, paragraphs 26 and 29.

[12] Affidavit of Peter Quinlivian, 15 October 2014, paragraphs 34 and following.

[14] See also BAE Systems Australia Ltd [2008] VCAT 1799 at paragraph [78].

[15] BAE Systems Australia Ltd [2008] VCAT 1799 at paragraph [79].

[16] Raytheon Australia Limited [2014] VCAT 1370 at paragraph [103].