1. current and former citizenship;
2. country of birth;
3. current and former passports;
4. current and former residential addresses; and
5. information about personal ties to countries other than Australia;

(c) without access to ITAR Controlled Material, the applicants' business operations would be severely detrimentally affected; and

(d) in turn, that would have a detrimental impact on the public interest, nationally and locally.

(a) without the proposed exemption, the applicants' collection of personal information (as outlined above) and the making of decisions affecting those individuals based on that information - or, I interpose, based on an individual's race as disclosed by that information - would be unlawful under the Act;

(b) the proposed exemption is necessary or desirable to achieve a purpose of the Act - specifically, to facilitate the participation of citizens in the applicants' operations in South Australia;

(c) the Act's prohibitions are unreasonably harsh or burdensome in the applicants' particular circumstances;

(d) there is a wider public interest to be served by the proposed exemption;

(e) there are no alternative means to achieve the applicant's purpose;

(f) the proposed exemption is no more than is necessary to achieve the applicants' purpose; and

(g) they take steps to mitigate the potential adverse effects of the proposed exemption.

1. I accept the applicants' submissions, with one exception.
2. I am not convinced that the proposed exemption is necessary or desirable to achieve a purpose of the Act.

(a) It is a purpose of the Act (per its long title) "to facilitate the participation of citizens in the economic and social life of the community".

(b) That does not, in my view, equate with the participation of certain individuals in the applicant's commercial operations (however those operations might contribute to the local economy and community), especially where the proposed exemption operates to exclude certain individuals from those operations.

1. Otherwise, having had careful regard to the evidence, I agree with the applicants.
2. In particular, in my view the proposed exemption is crucial to the continuance of the applicants' commercial operations in this State, and the contributions those operations make to the defence industry, and to the wider economy and community, locally and nationally mean that the exemption should be granted.
3. I am satisfied that the terms of the proposed exemption are appropriate.
4. Those terms were amended from the original application to add a reporting obligation to the Commissioner for Equal Opportunity, as agreed between the applicants and the Commissioner.
5. Otherwise, the Commissioner did not wish to be heard in relation to this application.
6. The Tribunal has received no public submissions in relation to the application.

1. The Tribunal makes the following orders that:
   1. Pursuant to s 92 of the Act, the Applicants are exempted from compliance with the provisions of ss 52, 54 and 103(1) of the Act to the extent that they may:

(a) request nationality and place of birth information from existing and potential employees and contractors;

(b) take a person's nationality and place of birth into account in determining who should be offered employment or contract work in areas requiring access to ITAR controlled material and Export Administration Regulations (EAR) controlled material (together, USA export controlled materials) and when making decisions as to the participation of employees or contractors in such work;

(c) maintain records of the nationalities and places of birth of all employees and contractors who have or may have access to USA export controlled materials;

(d) ensure that USA export controlled materials are disclosed only to persons who are authorised by ITAR controls or EAR controls to receive it;

(e) impose limitations or prohibitions on persons of particular nationalities or places of birth having access to USA export controlled materials;

(f) disclose to the ADF the nationalities and places of birth of all employees and contractors who will have access to USA export controlled materials in the performance of their work;

(g) disclose to USA-based contractors for whom the Applicants perform work under subcontract and to the USA government, the nationalities and places of birth of all employees and contractors who will have access to USA export controlled materials in the performance of their work;

(h) establish security systems which will prevent the unauthorised re-export or re-transfer of USA export controlled materials.

1. This order does not permit the Applicants to terminate any employee's employment on the grounds of nationality or place of birth.
2. The exemption is granted for a period of three years commencing from 26 August 2020, but will be subject to the following conditions:

(a) It will apply only to conduct by the Applicants where:

1. that conduct is necessary to enable it to enter into and/or perform contractual undertakings requiring access to USA export controlled materials; and
2. it has taken all steps that are reasonably available (including steps which might be taken in negotiating and performing the terms of its agreements with contractors in the USA) to avoid the necessity for engaging in conduct which would otherwise be in breach of ss 52, 54 and/or 103(1) of the Act.

(b) Where, in the exercise of this exemption, an employee or contract worker is moved from a project involving the use of USA export controlled materials to any other work controlled by the Applicants or any of their related entities, the Applicants 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.

(c) Where the Applicants use systems of security passes to reflect the fact of access to USA export controlled materials or levels of access to any security sensitive material by employees and contract workers, the passes may be coded but not in such a way as to identify the nationality or place of birth of the person or the reasons for that person's level of access.

(d) All information relating to security passes, security clearance levels and access to USA export controlled materials shall be restricted to the Applicants' Chief Counsel, its Head of Export Controls and Security and to their properly appointed nominees on a "need to know" basis.

(e) The Applicants' employment policies shall refer to the terms of this exemption, including all conditions attaching to it, and to make it clear that the request for information regarding nationality and place of birth is made solely for the purposes of compliance with the laws of the USA.

(f) The Applicants will report to the Commissioner for Equal Opportunity on an annual basis on the following matters:

1. the training and education provided to new and existing employees on these Orders and their implementation;
2. the steps taken by the Applicants to implement these Orders;
3. how the Applicants monitor compliance with these Orders;
4. the number of persons affected by these Orders and the nature of those effects;
5. the steps taken by the Applicants to address any adverse effects on existing employees as a result of these Orders; and
6. the steps taken by the Applicants to minimise the impact of these Orders on current and future employees.