Victorian Equal Opportunity and Human Rights Commission

Raytheon Australia Pty Ltd v Victorian Equal Opportunity and Human Rights Commission (Anti-Discrimination) [2011] VCAT 796

2. The principal registrar must, as soon as possible, cause a notice of exemption in the form attached to this Order to be published in the Government Gazette.

The Victorian Civil and Administrative Tribunal, has considered an application pursuant to Section 83 of the Equal Opportunity Act 1995 by Raytheon Australia Pty Ltd for exemption from Sections 13 to 15, 42, 100, and 195 of that Act. The application for exemption is to enable the applicant to engage in the exempt conduct.

In this exemption exempt conduct means any of the following conduct, for the purpose of enabling the applicant to meet its obligations under contract and under the International Traffic In Arms Regulations (as amended and in force at each time the conduct is engaged in) and only to the extent necessary to enable it to do any of the following -

(a) request existing and prospective employees and contract workers to provide:

1. their Personal Information; and

2. any changes in the Personal Information that they have already provided or that may be required for ITAR compliance.

(b) restrict ineligible employees and contract workers from accessing ITAR Controlled Material;

(c) advertise positions with the Applicant as being subject to an ability of the prospective employee or contract worker to obtain approvals for access to ITAR Controlled Material;

(d) reject applications by prospective employees and contract workers for positions which expose them to ITAR Controlled Material in circumstances where the individual concerned is ineligible;

(e) remove existing employees and contract workers from positions and/or projects which expose them to ITAR Controlled Material in circumstances where they are ineligible; and

(f) provide US Sponsor companies and the US Government with information relevant to the establishment of the eligibility of employees and contract workers of the Applicant who require, or are likely to require, access to ITAR Controlled Material.

"ITAR Controlled material" means defence articles, technical data and defence services regulated by the ITAR.

(d) current and past residential status held in any country other than the US or Australia.

UPON READING the material submitted in support of the application and upon hearing submissions from the applicant and the Victorian Equal Opportunity and Human Rights Commission and for the Reasons for Decision given by the Tribunal on 19 April 2011, the Tribunal is satisfied that it is appropriate to grant an exemption from Sections 13 to 15, 42, 100, and 195 of the 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 13 to 15, 42, 100, and 195 of the Act to enable the applicant to engage in the exempt conduct.

This exemption is to remain in force from and including 1 May 2011 until 30 April 2014.

This exemption is subject to the condition that the Applicant must provide to the Victorian Equal Opportunity and Human Rights Commission and VCAT a written report in relation to the period 1 May 2011 to 30 October 2012, and a report in relation to the period from 1 November 2012 to 31 January 2014. Each report must be provided within 21 days from the end of the relevant reporting period. Each report must detail:

(a) the steps it has taken to comply with the terms of the exemption;

(b) the number of persons affected by the exemption, the nature of the effects, and the steps taken to redress any adverse effects; and

(c) the implementation of and compliance generally with the terms of the exemption.

1. This exemption is granted in the form requested by the applicant. I have made a slight amendment in connection with the reference to the United States of America ("US") International Trafficking in Arms Regulations ("ITAR") to make it clear that the reference to those regulations applies as they are in force at each time the applicant proposes to engage in the exempt conduct. The exemption will last for three years from and including 1 May 2011. Before this, it will be published in the Government Gazette. The commencement date of the exemption takes into account that an interim or holding exemption is now in place and will expire on 30 April 2011.
2. It is a condition of the exemption that the applicant ("Raytheon") must report to the Victorian Equal Opportunity & Human Rights Commission (the "Commission") twice during the operation of the exemption. The first report must be made by 30 October 2012 (18 months from the date of commencement of the exemption). The second must be made by 31 January 2014 (3 months before the exemption is due to expire).

1. In 2007, VCAT (constituted by Vice President Judge Harbison) granted an exemption to Raytheon under s83 of the Equal Opportunity Act 1985 (the "EO Act"). Raytheon now seeks another exemption in similar terms.
2. Broadly, Raytheon seeks exemption from the prohibitions of the EO Act to enable it to engage in certain conduct, but only to the extents necessary to enable it to comply with the ITAR. Broadly, that conduct is -
   • To require information from its existing employees and contract workers (members of its workforce) to enable it to determine whether they are ineligible to access ITAR controlled material;
   • To restrict members of its workforce who are ineligible to access ITAR controlled material from accessing that material;
   • To advertise positions in its workforce as being open only to those who are eligible to access ITAR controlled material;
   • Rejecting the applications of applicants to its workforce who are ineligible to access ITAR controlled material, where the position they have applied for will involve access to that material;
   • Removing existing members of its workforce who are ineligible to access ITAR controlled material from positions or projects which may involve that access;
   • Providing to US sponsor companies or the US government information relevant to the eligibility of members of its workforce who require or are likely to require to access ITAR controlled material.
3. Raytheon applied to renew the 2007 exemption before its expiry. Before the expiry of the exemption, I granted an initial or holding exemption to enable Raytheon's application to be advertised and an opportunity to be given to its Victorian employees, members of the public and the Commission to make submissions on the matter, and in the light of what was thought to be the imminent handing down of the High Court's decision on the appeal from the decision of the Victorian Court of Appeal in R V Momcilovic.[1] The High Court has now listed the Momcilovic appeal for further hearing in June 2011. It is not known when the decision will be handed down. My view is that the hearing and determination of this application by VCAT should not be further delayed. The interim or holding exemption expires on 30 April 2011.
4. I have extensive submissions, affidavits and exhibited documentary material from Raytheon. I have extensive written submissions from the Commission, and have heard oral submissions from the applicant and the Commission. Although in its written submissions, the Commission argued that the exemption should be refused, the oral submissions made on the Commission's behalf at hearing were that it did not now oppose the granting of the exemption.
5. As the Tribunal directed, the application has been advertised in newspapers circulating throughout Victoria, notice of the application has been sent to Raytheon's Victorian employees, and the Commission has been notified. Raytheon has received one letter in support of its application. No submissions either opposing or supporting the application have been received by the Commission or the Tribunal.
6. I first deal with law. I next make findings. Finally, I state my conclusions.

1. Section 83 gives to the Tribunal a broad discretion to grant exemptions from provisions of the Act to people and classes of people, for activities or classes of activities, or in specified circumstances. The granting of an exemption is by notice in the Government Gazette. An exemption lasts for a maximum period of three years and is renewable. It may be subject to conditions. The Act also provides for the revocation of exemptions. An exemption can be granted on application or on the Tribunal's own initiative.
2. Earlier cases sought to define the discretion by reference to the scheme of the EOA, particularly those provisions which except classes of conduct from the prohibitions in the Act. Recent cases have followed a different approach, and I follow them.[2] VCAT's discretion under s83 is unconfined. The question is, what does the EO Act or the Charter of Human Rights and Responsibilities Act 2006 (the "Charter") tell us about what considerations to take into account when determining whether or not to exercise that discretion?
3. Section 3 of the EO Act sets out the Act's objectives. Although (as counsel for Raytheon submitted) the Act's objectives are expressed in general terms, they apply to the whole Act, including s83 and the discretion which it confers. Some of the objectives are easier to understand in the context of the Act's prohibitions. The objective to eliminate discrimination as far as possible by prohibiting it on the basis of various attributes is one of these. Some seem to have a broader focus, such as the objective to promote the recognition and acceptance of everyone's right to equality of opportunity.
4. The objectives are not comprehensive. They do not, for example, deal with the exceptions in the EO Act or with the exemption provisions specifically. They do not deal with s12. Section 12 explains the effect of the exception and exemption provision. If conduct is covered by an exception or by an exemption, that conduct is taken out of the prohibitions in the Act.
5. Section 35 of the Interpretation of Legislation Act 1984 explains how to interpret an Act which contains an objectives provision. An interpretation of the Act must be preferred which promotes the Act's objectives.
6. Unlike the express exception provisions in the EO Act, and although an exemption may relate to a particular person or activity or class of people or activities, each exemption is considered (and granted or refused) on a case by case basis. This provides flexibility and enables each proposal for exemption to be considered in the light of evidence.
7. The existence of the Act's prohibitions and its objectives tell us something about what factors are relevant in exercising the exemption's discretion. I have mentioned the need for evidence. The Act's prohibitions, and the corresponding freedom from discrimination which they contemplate, should not be lightly overridden. There must be some justification for taking conduct out of the Act's prohibitions. I said in the BAE case that there would need to be some interest sufficient to justify the taking of the conduct out of the Act's prohibitions. It is in this way that the notion of balance and proportionality are, in my view, relevant considerations to be taken into account in determining whether or not to exercise the exemption discretion. As I said in BAE, I do not think that it is relevant to consider whether the prohibitions in the Act might produce an unreasonable result. Whether or not those prohibitions may be considered uncomfortable or inconvenient, Parliament has enacted them.[3]
8. It also seems that a relevant factor would be whether there is some reasonably available alternative which, if adopted, would interfere less with the prohibitions in the Act. Such an alternative would minimise interference with the Act prohibitions.
9. Are there other factors relevant to the exercise of the exemption discretion? Both the applicant and the Commission submitted that what I have earlier called proportionality considerations were also relevant. Both arrive at this conclusion by different routes. It was submitted for Raytheon that the objectives and scheme of the Act, the principles of administrative law concerning relevant considerations, together with the need for consistency with international law, lead to this result. The Commission submitted that the Charter directly leads to it. Both agreed that proportionality considerations would involve the matters set out in s7(2) of the Charter.[4]

1. Section 8(2) and (3) of the Charter give the right to enjoy human rights without discrimination, the entitlement to equality before the law and to equal protection of the law without discrimination, and the right to equal and effective protection against discrimination. Section 13 gives the right not to have one's privacy unlawfully or arbitrarily interfered with.
2. Section 7(2) permits human rights to be subject to reasonable limits as follows -

7(2) A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including-

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

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

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

1. Section 32 requires that, as far as is possible consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights. Section 38 requires a public authority not to act incompatibly with human rights or, in making a decision, not to fail to give proper consideration to a relevant human right. In its exemptions jurisdiction, VCAT is a public authority.[5]
2. I follow what the Victorian Court of Appeal said about s32 in the Momcilovic case. It is still current law. Section 32 is part of the interpretive framework (which also includes common law presumptions and other interpretive principles) which we must apply first in interpreting sections such as s83. We must look to all possible interpretations of s83 to determine whether it is possible, consistently with its purpose, to interpret it in a human rights compatible way. In my view, it is clearly possible to do this. The form of s83 is entirely different to the form of s5 of the Drugs Poisons and Controlled Substances Act 1981 which the Victorian Court of Appeal considered in Momcilovic. That section reversed to the legal burden of proof in respect of part of the constituents of an offence, and so affected the presumption of innocence. The Court held that it was not possible to construe the section, consistently with its purpose, in a way compatible with human rights. In contrast, s83 gives an unconfined discretion to the Tribunal. It is clearly possible to interpret it in a human rights compatible way.
3. The Victorian Court of Appeal distinguish what I might call the interpretive task under s32 from the justification task under s7(2) of the Charter. The s32 task should be performed first. That section does not permit a Court or Tribunal to make legislation or rewrite provisions. If a provision cannot be interpreted consistently with its purpose in a human rights compatible way, then the justification task under s7(2) must be performed.
4. I have said that s83 of the EO Act, which gives an unconfined discretion, can, according to s32 of the Charter, be interpreted compatibly with human rights. What, then, is the function of s38? In my view, when VCAT is exercising its unconfined discretion under s83, and whether that is described as acting or making a decision, s38 of the Charter applies to it. It requires that it must not act in a way incompatible with human rights or fail properly to consider relevant human rights. Castles v Secretary to Department of Justice[6] tells us that this consideration must be serious and not perfunctory. The task here is to determine whether human rights are possibly engaged or affected, and then to determine whether they are subjected to a reasonable limit in the terms of s7(2). Section 38 requires the tasks of engagement (of human rights) and justification (reasonable limits) to be undertaken. In my view, the difference of wording between ss32 and 38 is consistent with this approach. Section 32 requires a statutory provision to be interpreted compatibly with human rights. This is in interpretation task. Section 38 tells a public authority what to do in acting or deciding something. It must not act or decide in a way that is incompatible with human rights. I agree with the Commission's approach on this point. As I have said, whether approach is relevant considerations or in Charter terms, the relevant proportionality considerations are conveniently set out in s7(2) of the Charter.

1. My findings are based on all the documentary evidence before me.

1. Raytheon is the Australian subsidiary of a US company operating in many parts of the world including the US. Among other activities, it provides defence-related materials to the Australian Government via its Department of Defence and its Defence Materiel organisation. Defence related materials include weaponry, communications, logistics support for the armed forces (whether ground-based, relating to air space or outer space). The term includes all the services associated with or ancillary to that provision - for example, production and maintenance, data and software, communications and intellectual property.

1. Raytheon and some other multi-national companies such as ADI (now Thales) Limited, BAE Systems Australia Limited and Boeing Holdings Australia Limited provide defence-related materials to the Australian Government via the departments I have just mentioned. What those companies must provide is dictated by the Australian Government's tender documents. The Australian Government, as part of its close ties of alliance with the US, has the opportunity to access US defence-related materials. That access is subject to the US ITAR. If Raytheon or one of the other companies I have just mentioned successfully tenders for one of these projects, it must operate within the ITAR regulated environment.
2. It is a long standing policy of the Australian Government that Australia should have a defence industry of its own. This is why the Australian Government puts out tenders for defence related project work to companies operating in Australia, such as Raytheon. It does not simply rely on buying ready made defence products from other countries. I agree with Raytheon that this policy has advantages for Australian employment and Australia's economy as a whole, as well as giving Australia a defence capability which is not wholly dependent on products manufactured in other countries. I accept that this is in our national interest.

1. These regulations govern access to US defence-related materials. I have explained them in detail in the BAE case, and it is not necessary for me to repeat that explanation here. The ITAR have not significantly changed since I made that decision.
2. Suffice it to say that the ITAR restricts export (which is interpreted to include transfer and disclosure) of US defence related materials to listed proscribed countries (such as Iran and Sudan) and to foreign persons (that is, non-US persons) unless there is a licence, or agreement or approval authorising this. Raytheon is a foreign person for this purpose. The ITAR apply to suppliers and receivers of ITAR controlled material. The ITAR require contracts for the export of that material to include a term requiring compliance with the ITAR. The ITAR apply, not only to defence related materials themselves, but to anything produced or manufactured using them. A "foreign person" is interpreted to mean a third country national (which, in the case of exports between US and Australia, is interpreted to mean a country other than those two countries). A national includes a citizen but not a permanent resident, and also includes a person who is a dual national. The ITAR require that end users (including companies like Raytheon engaged in projects which involve access to ITAR controlled materials) sign non-disclosure agreements. They require those companies to restrict access to ITAR controlled materials only to those who are eligible to access them and to provide to US companies who hold the head contracts for these projects and to the US Government information about access to ITAR controlled materials, including names and nationalities of employees and contractors, countries of birth and passport related information. Compliance with the ITAR is a term of all contracts concerning ITAR controlled material, between the US Government and US companies, and in turn between those US companies and sub-contractors like Raytheon. Breach of the ITAR is made subject to substantial monetary penalties and the revocation of US Government approval for the relevant contractor and sub-contractor.
3. I accept that the ITAR are an emanation of US Government policy. In recent times, there has been pressure and representations from various industry-based organisations and other groups (including groups of which Raytheon is a member) to modify the rigour of the ITAR. It is fair to say that change is slow.
4. In 2006, the Directorate of Defence Trade Controls (which has regulatory responsibilities under the ITAR) adopted a policy which somewhat lessened the rigour of the ITAR. In certain limited circumstances, that policy allowed Raytheon employees and contractors to rely on Australian Defence Department security clearance without the need to get additional approval from the Directorate. But the Directorate still requires nationality based information from Raytheon, and the Directorate has made it clear that it does not need to adhere to that policy in any specific case. In September 2007, Australia's then-Prime Minister Mr Howard and the then-President of the US Mr Bush entered into a treaty. Its effect was to lessen the rigorous application of the ITAR in respect of Australian companies and their contractors and employees involved in accessing ITAR controlled material. The treaty contemplated what it called an Australian community (which consisted of Australian Government organisations and non-Government entities such as Raytheon) which would have general security clearance to access ITAR controlled material. However, the treaty still contemplated the obtaining of security clearance where an individual in the Australian community had significant ties with a list of proscribed countries. If those ties existed, the treaty required the relevant US Government agency to be informed and to have the opportunity to refuse membership of the Australian community to that individual. The treaty also only applies to individuals who are Australian nationals - not to those who are permanent residents only.
5. The treaty is not yet in force.
6. President Obama has also initiated a review of the ITAR. As a result of the review, a draft amendment to the ITAR was published in August 2010. That amendment contemplates that more responsibility be given at the local level (the company whose contractors or employees are to access ITAR controlled material) for ensuring that access to the material complies with the ITAR. It broadens that access to some extent. However, the list of proscribed countries remains. The ITAR would still require nationality based information to be given to the Directorate, including information about substantive contacts between Raytheon's employees and contractors with proscribed countries or their nationals.
7. The amendment has not yet been made, and is still not in its final form.

1. Raytheon is currently undertaking three ongoing projects which involve access to ITAR controlled material and has tendered for two more. The first of the three current ongoing projects relates to an Australian defence air traffic control system. Raytheon provides engineering and project management support for this. The second is a leadership program within Raytheon, some of the components of which deal with projects relating to ITAR controlled material. The third is a battle management project, designed to capture information about the location of armed forces on the ground during combat. Raytheon's role is to do work in relation to the integration of components, military communications, and engineering and maintenance support. This third project is of particular importance, because knowing the location of our armed forces on the ground is not only necessary for effective planning and deployment, but is likely to minimise casualties, both civilian and military.
2. There are two pending projects for which Raytheon and other companies have tendered or are preparing to tender. The first concerns the development of a self-propelled howitzer. The progress of this project has been slow. It was in contemplation at the time of the 2007 exemption, but is now further advanced. The successful tenderer has not yet been announced.
3. The second is a battle space communications project, involving the development and upgrading of tactical communications technology. Raytheon successfully tendered for the first phase of this project and is preparing to tender for subsequent phases. The Australian Government has not made a decision on the successful tenderer for the subsequent phases.
4. The three current projects will involve the employment of up to 35 employees in Victoria and currently involve five employees. The two potential projects will, if Raytheon's tenders are successful, involve the employment of up to 35 more. The value of the current and potential projects totals more than $400 million.
5. I agree with Raytheon's submission that the existing projects provide employment in Victoria and stimulus to the Victorian economy and that, if Raytheon's tenders for the other two projects are successful, those advantages will be increased.

1. Raytheon has been granted similar exemptions to the one it now seeks from anti-discrimination legislation in all other Australian states and territories except Tasmania and the Northern Territory. In Tasmania, it does not have defence projects which involve access to ITAR controlled material. In the Northern Territory, it applied for exemption from the Northern Territory Anti-Discrimination Act 1991 but then withdrew that application. After the withdrawal, the then-Anti-Discrimination Commissioner issued a "decision". That "decision" is in the material before me. I have read it, but it does not have the status of a decision in a proceeding on foot. The ACT Anti-Discrimination Tribunal refused Raytheon's application for exemption, but that decision was reversed on review. A similar exemption to the one Raytheon now seeks was granted in Victoria in 2007. Similar exemptions have been granted in Victoria and other states to Raytheon's competitors in this field.[7]
2. Among the many factors I take into account, I take into account that a refusal of an exemption to Raytheon would reduce the number of tenderers for the two projects I have mentioned and, to that extent, reduce competition. If Raytheon were unable to continue tendering, and the successful tenderer did not employ people or conduct work in Victoria, then the advantages I have mentioned to Victorian employment and the Victorian economy would be lost. While profit alone cannot justify the taking of conduct out of the prohibitions of the EO Act, it is my view that broader considerations of increased employment and economic stimulus are relevant, although not by themselves determinative. It cannot be ignored (although it is not determinative) that refusal of this exemption would adversely impact at least some of Raytheon's Victorian workforce. Raytheon could not, consistently with the EO Act, comply with its obligations under the ITAR and so could not engage in ITAR related project work in Victoria. It would need to conduct these projects either in another state or territory in which it has a similar exemption or offshore. Part of its Victorian workforce who had previously worked on these projects would need to be relocated or might be retrenched. Raytheon's ability to comply with its current projects in Victoria in a timely way would be delayed and might be seriously compromised. Those delays might adversely impact Raytheon's financial position and also the national security interests which those projects reflect.

1. The documentary evidence and the reports submitted to the Commission by Raytheon as required by the exemption show this. Raytheon has made sparing use of the exemption. It seems that there has been only one use of the exemption in late 2010 in relation to an application to join Raytheon's workforce, but also that the application was rejected for reasons which had nothing to do with the ITAR. It has, wherever possible, sought authorisation for dual nationals to have access to ITAR controlled material. However, the Directorate takes nine months or longer to decide applications for approval. It has operated on a case by case basis rather than making "blanket" or class decisions. Where ineligibility to access ITAR controlled material has affected current employees, it has taken steps to minimise those effects, by making sure that those employees remain employed, that their conditions and advancement are not affected, and that the position is adequately explained to them. Where prospective employees are affected, it has also explained the matter to them, and has explained what work or projects it has that do not involve access to ITAR controlled material.
2. Raytheon has maintained policies and programs addressing equality of opportunity, anti-discrimination, sexual harassment and workplace bullying. In early 2010, the Commission made some suggestions for improvements to these programs. Raytheon accepted and implemented these suggestions.

1. I conclude that the exemption should be granted for a period of three years. The Commission submitted that reports made by Raytheon under the exemption should be directed, not to it, but to VCAT. It submitted that the processing of these reports was an onerous requirement.
2. I agree that the reporting periods are too short. But I do not agree that the Commission is not the appropriate body to receive the reports. It has ongoing functions under the EO Act in relation to research, education and training, and is well placed to receive reports such as this. If the Commission considers it appropriate to do so, having regard to the reports, it could apply to VCAT to have the exemption changed or revoked. I have changed the reporting requirement so that it occurs only twice during the period of the exemption.
3. I briefly state the reasons for my conclusion. I deal first with the Charter.
4. The proposal clearly raises the possible engagement of the rights in s8(2) and (3) and s13. The possible discrimination is on the ground of the attribute of race, which includes nationality and national or ethnic origin. This is not a measure to assist those disadvantaged because of discrimination, and s8(4) does not apply. The possible interference with the privacy right is constituted by the requirement to reveal information about nationality or national origin, information which would normally be private to the employer or contractor and irrelevant to the employment.
5. Does the proposal constitute a reasonable limit on these rights? In my opinion, it does. The rights are of fundamental importance. But the purpose of the limitation is also vitally important. It enables the Australian Government to maintain its defence capability and develop its defence industry. This is vitally important for national security. The proposal goes no further than is necessary to enable compliance with the ITAR. If the ITAR are subsequently amended or made less rigorous because of the proposed treaty, the exemption will narrow correspondingly.
6. In its submissions, the Commission suggested a number of alternatives which it suggested were less restrictive and reasonably available. These included non-nationality based screening of employees and contractors, giving employees or contractors access to ITAR controlled material based on such factors as experience, length of service, work record, references, non-disclosure agreements, and minimising the number of employees or contractors who have access to the ITAR controlled material. I accept that Raytheon have implemented the last of these alternatives, and so minimised the numbers of cases in which the exemption will be used. But I do not accept that any of the other alternatives will achieve the purpose of the limitation. None of them overcome the problem of the provisions of the ITAR.
7. I accept that Raytheon has little choice but to make this exemption application. It is not responsible for the ITAR or for Australian Government decisions made in relation to national security.
8. The proposal involves possible race discrimination prohibited by the EO Act. However, the interests underlying the exemption proposal are sufficient to justify taking the exempt conduct out of those prohibitions. The balance of proportionality considerations is in favour of granting the exemption.
9. I reiterate the comment I made in the BAE case that the ITAR would seem to be a blunt and imperfect instrument for controlling access to US defence-related material which it governs. It may be that intergovernmental lobbying might quicken the process of change that has already begun.

[1] (2010) VSCA 50

[2] For example, Lifestyle Communities (No 3) (2009) VCAT 1869; Boeing Australia Holdings Ltd (2007) VCAT 532; ADI Limited (2007) VCAT 1799

[3] Compare the approach in the Boeing case (above).

[4] As to consistency with International Law, see article 26 of the International Covenant on Civil & Political Rights (ICCPR) and Lifestyle Communities (No 3) (above)

[6] (2010) VSC 310

[7] For example, ADI Limited, BAE Systems Australia Limited