Boeing Australia Holdings Pty Ltd (Anti Discrimination Exemption) [2007] VCAT 532 (3 May 2007)

Boeing Australia Holdings Pty Ltd (Anti Discrimination Exemption) [2007] VCAT 532 (3 May 2007) - VCAT 2007 case summary — Zoe

[50]

21 The Act provides that an employer must not discriminate against a person in determining who should be offered employment or in determining the terms on which employment is offered to the person.[3] There is a similar prohibition in relation to discrimination against an employee.[4]

22 Discrimination is defined to mean direct or indirect discrimination on the basis of an attribute.[5] One of the attributes, on the basis of which discrimination is prohibited, is race.[6] The word "race" is defined to include "nationality or national origin".[7]

23 Hence it is unlawful for an employer to determine who should be offered employment on the basis of their nationality.

24 The concept of "nationality" is not free from difficulty. It describes a relationship between a person and a nation. In many cases it is interchangeable with "citizenship", in that the nationality of a person is the nation of which they are a citizen. However the concept can also be understood in a broader sense: that is, the relationship between a person and a place (which, like the Kurdish region of Iraq, might not even be a nation) or a culture or even a loyalty.[8] However recent legal authority, which I accept, draws a distinction between nationality and national origin; and prefers a narrow meaning of the concept of nationality, equating it with citizenship. For example, in Macabenta v Minister for Immigration and Multicultural Affairs[9] the Full Court of the Federal Court of Australia held that a statutory rule which conferred rights by reference to citizenship of specified countries could not be said to confer rights by reference to "national origin" in breach of the Racial Discrimination Act 1975 (Cth). It also held that the trial judge had been right in construing nationality as equivalent to citizenship, but different from "national origin". As the Full Court explained, this approach is consistent with English[10] and American authority.[11]

25 In my opinion, the meaning intended by the expression "national of a third country" in Part 124.8(5) of the ITAR is citizenship of a third country. This is consistent with the approach taken in cases such as Macabenta. It is also indicated by the context and, in particular, the use of the expression "national of a third country". Hence the form of discrimination which Boeing wishes to engage in in order to comply with the ITAR is discrimination on the basis of citizenship, rather than discrimination on the basis of nationality in the ethnographical sense. Although discrimination on the basis of citizenship clearly involves discrimination on the basis of nationality - whereas discrimination on the basis of nationality in the ethnographical sense may or may not[12] - conversely it might be thought to be a less offensive basis for discrimination, at least in some circumstances, as a person can often exercise some control over their citizenship.

[59]

Clearly both the objectives of the Act and the reasonableness of the conduct sought to be exempted are relevant (whether or not it bears a relationship to a statutory exemption); but I cannot agree that an exemption will always be inappropriate because it is sought for reasons unrelated to the objectives of the Act. Rather it will sometimes be the case that an exemption is appropriate for practical reasons, unconnected with equal opportunity objectives. The circumstance referred to in section 83(1)(b), concerning communal accommodation suitable for persons of a single sex, is such an example.

32 In ADI Limited and Equal Opportunity Commission[18] the State Administrative Tribunal of Western Australia published detailed reasons for granting an exemption under the equivalent provision in the Western Australian Equal Opportunity Act 1984. The tribunal had been referred to the Fernwood case, but did not apply it. In essence the tribunal held that whether an exemption should be granted should be determined by reference to the public interest. In my view, although matters of public interest are clearly relevant, this will not provide a complete test. It will sometimes be that an exemption is reasonable having regard to essentially private interests: for example, to use section 83(1)(b) again, by reason of the cost or practicability of providing communal accommodation for workers of both sexes.

33 Thus the discretion to grant an exemption under section 83 of the Act is unconfined, except to the extent that it is only to be exercised to ensure that equal opportunity legislation does not operate unreasonably. In exercising the discretion it will always be necessary to give weight to the community's demonstrated commitment to human rights and equal opportunity. However it will also be necessary to consider other factors, whether of a public or private character, which might outweigh this commitment.

34 The Commission submitted that a "reasonable limitations" test might be adopted in determining whether or not an exemption should be granted. It said that such an approach would involve consideration of these questions:

[61]

I accept that these considerations will be helpful in exercising the discretion under section 83. I also accept that these considerations (or ones that are substantially the same) are indicated by the recently enacted Victorian Charter of Human Rights and Responsibilities Act 2006. But I doubt that the considerations do more than expand on a more succinct test, which I prefer, of whether the proposed exemption is necessary or desirable to avoid an unreasonable outcome.

35 The Commission also submitted that discretion is to be informed by an acknowledgment that our community is one that is based on principles of human dignity, equality and freedom. This is clearly right. It also argued the starting point of any analysis is that departures from rights cannot be based on mere preference or convenience. This is less obviously right. Sometimes an exemption might be sought on the basis of convenience or cost or practicality; and whether it is appropriate will depend on the impact of the exemption on human rights and equality of opportunity and upon the importance of the purpose for which an exemption is sought. In this respect I would note that there is a strong public interest in maintaining human rights (even though human rights very much exist to protect private interests); but there is also a public interest in achieving convenient, economic and practical outcomes, even though such outcomes may serve private interests.

36 The conclusions I have reached as to the test to be applied are not substantially different to those applied by the tribunal in the recent decision in Australian Grand Prix Corporation.[19] In that case Deputy President McKenzie commented that there is a broad discretion in the tribunal to grant exemptions from provisions of the Act; and applied the test of whether there was an interest "sufficient to justify the exemption", including whether it promoted one of the objectives of the Act. Significantly, Deputy President McKenzie did not say that the only interests which would justify an exemption are those that promote the objectives of the Act.

[64]

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.[24] 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 licencing 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.

43 The International Covenant on Economic, Social and Cultural Rights recognises the right to work as a human right.[25] The availability of employment is important to both society and individuals within society. The continuity of employment is also important: to lose a job often has greater consequences than to not obtain a job. Hence the prospect of Hawker de Havilland closing its factory at Fishermens Bend - or even winding back its operations - looms as very important, especially having regard to the number of jobs involved. There are also the considerations of flow-on economic benefits, improved defence capability and higher education advantages which are generated by the Hawker de Havilland plant. Although these are hard to measure, I am persuaded that they are substantial and important.

44 The human rights standard in issue in this case is concerned with discrimination on the basis of nationality, not discrimination on the basis on ethnicity or ethnic origin or national origin. This is of some relevance, as nationality - in the sense of citizenship - is to some degree a matter of choice. Further our society already recognises that citizenship might be an appropriate basis upon which to discriminate; for example, it is the main basis for determining who is entitled to vote in national and State elections.

45 The extent of the compromise of the human rights standard in the present case can be minimised by the imposition of conditions. This has been acknowledged by Boeing, which has put forward a range of conditions designed to minimise the practical impact of the grant of an exemption. In my view, the range of conditions achieves the outcome sought by the Commission using its "reasonable limitations" test.

46 The AMWU was concerned that the nature of the conditions left much to the discretion of Boeing. But I cannot see any realistic alternative. The exemption sought by Boeing will only apply to actions or omissions which are reasonably necessary for it to meet the requirements of the US Security Regulations. The AMWU submitted that any exemption should specify the precise actions, and be confined to those actions. Although particular actions might be specified (such as requesting the citizenship status of a person) it is likely that other actions, intended to be covered by the exemption, will not be able to be identified. In my view, it is sufficient to impose the requirement that the actions or omissions be reasonably necessary: such a test is both flexible and meaningful. Many aspects of society are regulated by the general concept of reasonableness. It requires a requisite relationship between an action and the real basis for that action; and it requires the action to be justifiable in all the circumstances. I add that the reporting obligations will act as a check to ensure that any discretionary power is used reasonably and responsibly.

At a glance

Court

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Judgment (72 paragraphs)

Boeing Australia Holdings Pty Ltd (Anti Discrimination Exemption) [2007] VCAT 532 (3 May 2007)

Cases Cited (2)